ITT Automotive

National Labor Relations Board - Board Decisions

Sep 29, 1997

324 N.L.R.B. 609 (N.L.R.B. 1997)

609
324 NLRB No. 101
ITT AUTOMOTIVE
1 The Respondent requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 In adopting the judge’s conclusion that the Respondent unlaw-
fully suspended employee Pardonnet, we find it unnecessary to rely
on the judge’s consideration of what he termed ‘‘apparent discrimi-
natory actions taken against [Pardonnet] before the settlement agree-
ment.’’ We also correct the judge’s inadvertent error of referring to
discriminatee Benita Pardonnet as ‘‘Venita.’’
4 146 NLRB 770 (1964), enf. denied on other grounds 344 F.2d
617 (8th Cir. 1965).
5 In finding this violation, we rely on the judge’s specific rejection
of the Respondent’s challenges to Pardonnet’s credibility and on the
fact that her testimony on this issue was uncontradicted. We there-
fore find it unnecessary to draw any inference from the failure of
the Respondent’s counsel to testify.
6 Id. at 775 [fn. omitted].
ITT Automotive, a division of ITT Corporation and
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW), AFL–CIO. Cases 7–CA–
37082(2), 7–CA–37367, 7–CA–37367(2), and 7–
RC–20273
September 30, 1997
DECISION, ORDER AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HIGGINS
On July 17, 1996, Administrative Law Judge Marion
C. Ladwig issued the attached decision. The Respond-
ent filed exceptions and a supporting brief. The Gen-
eral Counsel filed an exception and a brief in support,
and a brief in answer to the Respondent’s exceptions.
The Union filed a brief in response to the Respond-
ent’s exceptions. The Respondent also filed a brief in
answer to the General Counsel’s exception, and briefs
in reply to the General Counsel’s and the Union’s an-
swering briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs1 and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions3 and to adopt the rec-
ommended Order, as modified.
We grant the General Counsel’s exception to the
judge’s failure to make a finding that the Respondent
violated Section 8(a)(1) by not adhering to the stand-
ards for questioning an employee set forth in Johnnie’s
Poultry.4 The General Counsel asserts that although
employee Pardonnet was given the assurances required
by Johnnie’s Poultry, the Respondent did not provide
other specific safeguards set forth in that case, and
thus violated Section 8(a)(1). We agree.5
In Johnnie’s Poultry, the Board set forth the safe-
guards designed to minimize the coercive impact of
employer interrogations to ascertain necessary facts
from employees to prepare the employer’s defense for
trial. Certain verbal assurances are necessary to inform
the employee of the nature of the questioning, that no
reprisals will take place, and that participation is vol-
untary. In addition, the Board requires that the ques-
tioning must occur
in a context free from employer hostility to union
organization and must not be itself coercive in na-
ture; and the questions must not exceed the neces-
sities of the legitimate purpose by prying into
other union matters, eliciting information concern-
ing an employee’s subjective state of mind, or
otherwise interfering with the statutory rights of
employees.6
When an employer transgresses the boundaries of these
safeguards, it loses the benefits of the privilege. We
find that certain questions asked by the Respondent’s
counsel of Pardonnet at the May 10, 1995 interview
violated the Act because these boundaries were trans-
gressed.
The facts surrounding the questioning of Pardonnet
are not in dispute. The issues raised by the objections
and complaint involved, inter alia, preelection threats
of loss of jobs, threats that bargaining would be futile,
requests that employees wear antiunion buttons, and a
postelection threat to a union observer. The Respond-
ent’s counsel met with Pardonnet on May 10, 1995.
They advised her that they were attorneys and that
they were investigating objections and unfair labor
practice charges filed against the Respondent. They in-
formed her that no reprisals would be forthcoming, and
that her participation was voluntary.
Later in the meeting, they asked Pardonnet the fol-
lowing questions: (1) whether employees at union
meetings discussed incidents where supervisors asked
employees to wear antiunion buttons; (2) whether any
employees who wore ‘‘no’’ buttons actually supported
the Union, or if any employees who wore ‘‘yes’’ but-
tons were actually against the Union; (3) why employ-
ees thought they needed a union at ITT and what had
gone wrong; (4) if any employees were taking notes of
events at the plant and if they were being discussed at
union meetings; and (5) if any employees were taking
notes about incidents with management and if they
were discussed in union meetings.
We find that these questions exceeded the legitimate
purpose of preparing the Respondent’s case for trial,
pried into matters beyond the legitimate scope of the
interview, and impermissibly infringed on employees’
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610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 290 NLRB 317, 331 (1988), enfd. in relevant part, 912 F.2d 854
(6th Cir. 1990).
1 All dates are in 1995 unless otherwise indicated.
Section 7 rights. Adair Standish Corp.7 The question
concerning whether any employees who wore ‘‘no’’
buttons actually supported the Union and whether any
employees who wore ‘‘yes’’ buttons were actually
against the Union, and the question as to why employ-
ees thought they needed a union at ITT and what had
gone wrong, were impermissible inquiries aimed at
eliciting information concerning employees’ union sen-
timents. Questions concerning whether certain issues
had been discussed at union meetings were also unre-
lated to the charges and objections at issue. Accord-
ingly, we find that the Respondent violated Section
8(a)(1) by questioning Pardonnet in this way.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent, ITT
Automotive, a division of ITT Corporation, Oscoda,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Insert the following as paragraph 1(e) and reletter
the subsequent paragraphs accordingly.
‘‘(e) Conducting interviews with employees in prep-
aration for a hearing while exceeding the legitimate
scope of inquiry for such interviews so as to unneces-
sarily and coercively intrude into the Section 7 activi-
ties of employees.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
IT IS FURTHER ORDERED that the election held in
Case 7–RC–20273 is set aside, and that case is severed
and remanded to the Regional Director to conduct a
new election when he deems the circumstances permit
the free choice of a bargaining representative.
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT predict the loss of jobs from strikes,
job transfers, or plant closure without objective foun-
dation if you vote for representation by the United
Auto Workers (UAW).
WE WILL NOT tell you that bargaining would be fu-
tile if you vote for UAW.
WE WILL NOT ask you to wear an antiunion button.
WE WILL NOT threaten to take any action against
you for union activity.
WE WILL NOT conduct interviews with you in prepa-
ration for a hearing while exceeding the legitimate
scope of inquiry for such interviews so as to unneces-
sarily and coercively intrude into your Section 7 activi-
ties.
WE WILL NOT suspend you or put you on probation
for union activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make Benita Pardonnet whole for any loss
of earnings and other benefits resulting from her sus-
pension, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the suspension and probation of Benita Pardonnet, and
WE WILL, within 3 days thereafter, notify her in writing
that this has been done and that the suspension and
probation will not be used against her in any way, in-
cluding any request for reemployment.
ITT AUTOMOTIVE, A DIVISION OF ITT
CORPORATION
George M. Mesrey, Esq., for the General Counsel.
Curtis L. Mack and Amy J. Zdrovecky, Esqs. (Mack, Wil-
liams, Haygood & McLean), of Atlanta, Georgia, and Rob-
ert D. Harris, Esq., of White Plains, New York, for the
Respondent.
Michael L. Fayette, Esq., of Grand Rapids, Michigan, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. These
cases were tried in Tawas City, Michigan, on February 21–
23, 1996. The charges were filed by the Union (UAW)
against the Company, ITT Automotive, a division of ITT
Corporation (ITT), in Case 7–CA–37082(2) on April 19,
19951 (amended June 5), Case 7–CA–37367 on June 23, and
Case 7–CA–37367(2) on July 3. The consolidated complaint
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611ITT AUTOMOTIVE
and Report on Objections to Election in Case 7–RC–20273
was issued on October 10.
The Company employs over 900 employees in its auto-
motive parts plants in Oscoda, Tawas City, and East Tawas
in northeast Michigan. Opposing UAW’s organizing drive
before the March 30 election, the Company engaged in a
campaign that was obviously intended to create an atmos-
phere of fear of the loss of jobs in the seashore towns.
Among its other preelection literature, the Company dis-
tributed a total of 93 leaflets (160 pages) describing 8 lost
strikes by UAW, IAM, Paperworkers, and Rubber Workers
in the past 19 years at five different ITT divisions and three
other employers. Meanwhile the Company brought employ-
ees from its Mexico plant to videotape jobs and displayed
large ‘‘MEXICO TRANSFER JOB’’ signs on machines and
equipment awaiting shipment to Mexico.
Demonstrating the ease of transferring jobs, the Company
rented four large trailers and practically emptied the Oscoda
plant 5 overnight. It loaded the trailers and parked them in
the employee parking lot while the plant floor was being re-
surfaced—instead of following its prior practice of moving
the equipment to one side of the plant and then to the other
to resurface the floor. At the Tawas City facility, by the a
main entrance door during a shift change, a supervisor
parked his pickup truck loaded with three of the plant’s
‘‘boards’’ (portable work stations for assembling auto parts),
further demonstrating the ease of transferring the work.
On March 27 (3 days before the election) the Company
distributed the final four of the strike leaflets (totaling 45
pages), along with a letter signed by General Plants Manager
Gale Spallinger, stating that the Company in the last year
‘‘increased enrollment by over 250 employees’’ in the Iosco
County plants, ‘‘adding meaningful jobs and stability.’’ The
leaflets concern UAW’s 1976 and 1978 strikes and IAM’s
1979 strike in different divisions of the Company and
UAW’s 1986 strike against another employer (Guardian In-
dustries).
A 15-page leaflet concerning UAW’s 1976 strike at its
former circuit control plant at Petoskey, Michigan states on
page 13: ‘‘The Union Lost in Petoskey—DON’T YOU BE
A LOSER HERE AT ITT AUTOMOTIVE BAYLOCK
VOTE NO’’ and on page 15: ‘‘The only guarantee against
this happening here at ITT Automotive Baylock is . . . TO
VOTE NO.’’
Although the 1979 strike at the ITT Stover Tanks plant in
Freeport, Illinois, was an IAM (not a UAW) strike, a May
27 10-page leaflet concerning that strike concludes, ‘‘DON’T
PUT YOUR JOB IN THE HANDS OF THE UNION VOTE
NO.’’
The preelection speeches being made by management offi-
cials culminated on March 28 with a written speech by Ralph
Iorio, president of the Company’s fluid handling division (12
facilities in the United States, Canada, and Mexico)—dis-
cussing the ‘‘viability [emphasis added] of our plants in
Tawas City, East Tawas, and Oscoda.’’ In the 10-page
speech, in which he discussed the global economy and the
Company’s making the determination ‘‘where we can be
competitive,’’ he referred to its ‘‘growing operation in Mex-
ico’’ and stated that ‘‘We cannot survive here if we continue
to lose product . . . even to our own plant in Mexico.’’
After mentioning three strikes the Company had described
in 122 pages of campaign literature, Iorio told the employ-
ees: ‘‘Look at our own ITT Automotive plants of Ithaca,
Rochester and Williamston all in Michigan, all closed and all
affecting hundred of former UAW members. . . . I don’t
know what this union would do when we say ‘No’ to de-
mands we consider unreasonable. In some negotiations which
we have had, the Union has called a strike. . . . In some
cases, we have permanently replaced striking employees. In
other cases, we have moved the work and closed the plant
especially where light assembly or manual work was being
done and the work was easily transferred. . . . DON’T—
LET IT HAPPEN HERE.’’
A large ‘‘don’t want’’ and ‘‘don’t need’’ the UAW sign,
stating ‘‘I NEED MY JOB!’’ was posted on windows of
management offices at the Oscoda facility.
The General Counsel contends that Iorio’s ‘‘repeated ref-
erences to plant closing and the inevitability of strikes im-
plied, without any objective foundation, that a vote for union
representation would lead to plant closure and/or loss of
jobs’’ and was ‘‘an exercise in futility.’’
The Union contends that Iorio’s speech, referring to the
transfer of jobs to Mexico, ‘‘summarizes all of the objection-
able acts committed by ITT during the critical period. . . .
This rhetoric alone is enough to ensure that the employees
understand that if the union gets in, work is going to Mex-
ico. . . . all a part of a central theme of the Employer’s
campaign—if the UAW wins, the employees lose their
jobs.’’
The Company contends that the speech of Iorio, as well
as the speeches of other officials, ‘‘are protected’’ by Section
8(c) of the Act, which ‘‘permits an employer to present its
views regarding unionization.’’ Ignoring the admission by
one of its own supervisor witnesses that she herself was
‘‘concerned’’ about the plant closing if the Union won the
election—and despite evidence of employee impression from
Iorio’s speech ‘‘that the plant would close if the union won
the election’’—the Company contends that neither the Gen-
eral Counsel nor the Union ‘‘offered any evidence to show
that any employees were affected’’ by the rhetoric.
Although the evidence is undisputed that a stack of the
‘‘MEXICO TRANSFER JOB’’ signs was displayed on a su-
pervisor’s desk, the Company contends that there is no evi-
dence that the Company prepared the sign or attached it to
the equipment and ‘‘it must be assumed that it was prepared
by a third party.’’ Regarding what it asserts is the Union’s
argument that ‘‘in an attempt to coerce its employees,’’ it
‘‘subtly threatened to move work to its Mexico facility’’ and
‘‘created the impression of packing up its plant at night and
posted various flyers throughout the plant’’ to ‘‘maximize its
threats,’’ the Company contends that the Union ‘‘failed to es-
tablish that any of these incidents occurred or that they were
authorized or ratified.’’
The Company also contends that the Union failed to show
that these incidents ‘‘reasonably affected the results of the
election’’—despite the testimony that at the time of the
plant-pack-up incident, a union supporter told another sup-
porter that ‘‘with the threats that were being made about
moving the company to Mexico . . . they proved to him that
they could pack up and move overnight,’’ and ‘‘he had to
back out of’’ supporting the Union.
The primary issues are (1) whether Iorio’s speech to em-
ployees at the Oscoda, Tawas City, and East Tawas plants
on March 28 (2 days before the election), threatened employ-
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612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees with strikes, plant closings, and bargaining futility, coerc-
ing the employees in violation of Section 8(a)(1) of the Na-
tional Labor Relations Act and (2) whether the Company
conducted ‘‘a campaign of fear and intimidation through con-
stant predictions of violence, strikes, loss of customers and
economic detriment which the employer insinuated would in-
evitably result from a union victory’’—interfering with the
employee’s free choice of representation and requiring the
March 30 election to be set aside and a new election held.
Other issues are whether the Company engaged in addi-
tional coercive conduct before and after the election in viola-
tion of Section 8(a)(1), suspended a union supporter after the
election in violation of Section 8(a)(3) and (1), and also en-
gaged in additional objectionable conduct that requires the
election to be set aside.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, the Company, and the Union,
I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, manufactures automotive
parts at its facilities in Oscoda, Tawas City, and East Tawas,
Michigan, where it annually receives goods valued over
$50,000 directly from outside the State. The Company ad-
mits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act
and that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES AND
OBJECTIONABLE CONDUCT
A. The Company’s Loss-of-Jobs Campaign Theme
1. Background
The Union began the organizing drive in September 1993.
On February 11, 1994, it filed a petition for an election,
which was delayed by earlier charges the Union filed in
Cases 7–CA–35130, 7–CA–35379, 7–CA–35535, and 7–CA–
35844. (G.C. Exh. 1(p), p. 6; C.P. Exh. 1; and R. Exh. 11,
p. 87.)
On June 3, 1994, the Company signed a settlement agree-
ment with a notice, promising in part that it ‘‘WILL NOT’’
(a) ‘‘coercively interrogate’’ employees; (b) ‘‘create the im-
pression’’ of surveillance; (c) ‘‘threaten employees with dis-
charge, discipline, loss of seniority or jobs, plant relocation
or closure’’; (d) inform employees ‘‘it would be futile’’ to
select a union; (e) promise benefits ‘‘if employees repudiate
the Union’’; (f) maintain or enforce any rules that prohibit
‘‘distributing union literature in the lunchrooms’’ or ‘‘posting
union literature on employee bulletin boards’’; (g) ‘‘restrict
our employees’ conversations, restrict their mobility or mon-
itor their activities more closely because of their support for
the UAW’’; or (h) ‘‘make negative references to employees
in their progress reviews’’ for supporting the Union (C.P.
Exh. 1, p. 3).
The settlement agreement does not include a nonadmission
clause. Instead it provides in a reservation clause, in part
(C.P. Exh. 1, p. 1):
The General Counsel shall have the right to use the
evidence obtained in the investigation of the above-cap-
tioned case in the litigation of any other unfair labor
practice case; and any judge, the National Labor Rela-
tions Board, or any other tribunal may rely on such evi-
dence in making findings of fact or conclusions of law.
2. Preelection campaign literature
The Company (the ITT Automotive division of ITT) com-
prises 12 fluid handling facilities (those in Oscoda, Tawas
City, and East Tawas, 7 others in the United States, 1 in
Canada, and 1 in Mexico), and 4 brake systems, 6 electrical,
6 motors & actuators, 5 NAAD, 4 precision die casting, and
7 structural systems facilities (R. Exh. 50).
Evidently in the absence of strike activity at any of these
44 facilities, the Company went back to a 1976 strike at its
former circuit control facility in Petoskey, Michigan, and
outside the Company to other divisions of ITT and to non-
ITT employers for its extensive campaign literature warning
employees of a strike if they voted for union representation.
Copies of its campaign literature that the Company pro-
duced at the trial (C.P. Exh. 5) include a total of 93 leaflets
(160 pages) describing eight lost strikes in the 19 years be-
fore the March 30, 1995 election. The strikes were UAW,
IAM, Paperworkers, and Rubber Workers strikes at five dif-
ferent ITT divisions and three other employers.
There are 86 leaflets (totaling 88 pages) of newspaper clip-
pings and press releases describing, sometimes daily, devel-
opments in a 1990 UAW strike at the ITT Electron Tech-
nology Division in Easton, Pennsylvania. A 25-page leaflet
of newspaper clippings describes a Paperworkers strike, also
in 1990, at the ITT Rayonier’s pulp mill in Hoquiam, Wash-
ington. (C.P. Exhs. 5a–5ffff and 5gggg.)
On March 22, the week before the election, the Company
distributed a February 4 newspaper clipping reporting that
talks to settle UAW’s strike at Caterpillar ‘‘fold’’ and a leaf-
let of newspaper clippings concerning a Rubber Workers’
strike at Bridgestone/Firestone in Akron, Ohio. The next day,
March 23, the Company distributed a leaflet, urging ‘‘FOR
NO STRIKES VOTE NO UNION.’’ (C.P. Exhs. 5LLLL,
5mmmm, and 5qqqq.)
On March 27 (3 days before the election) the Company
distributed the four final leaflets that concern strikes called
in 1976, 1978, 1979, and 1986. One is a 15-page leaflet con-
cerning UAW’s March 10, 1976 strike (19 years earlier) at
its former circuit control plant in Petoskey, Michigan. The
leaflet states on page 13: ‘‘The Union Lost in Petoskey—
DON’T YOU BE A LOSER HERE AT ITT AUTOMOTIVE
BAYLOCK VOTE NO’’ and on page 15: ‘‘The only guaran-
tee against this happening here at ITT Automotive Baylock
is . . . TO VOTE NO.’’ (C.P. Exh. 5pppp.)
The second is a leaflet concerning UAW’s September 9,
1978 strike at the ITT Thompson Industries factory in Wa-
verly, Ohio. The third is a leaflet attaching 17 pages of
newspaper clippings concerning UAW’s May 15, 1986 strike
at another employer, Guardian Industry, a glass plant in
Monroe, Michigan. The fourth March 27 leaflet concerns a
1979 strike at the ITT Stover Tanks plant in Freeport, Illi-
nois. Although this was an IAM (not a UAW) strike, the 10-
page leaflet concludes, ‘‘DON’T PUT YOUR JOB IN THE
HANDS OF THE UNION VOTE NO.’’ (C.P. Exhs. 5nnnn,
5oooo, and 5ccccc.)
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613ITT AUTOMOTIVE
Accompanying the four March 27 leaflets was a letter
signed by Gale Spallinger, the general plants manager of ITT
Automotive North America. The letter states that, ‘‘We have
increased enrollment by over 250 employees’’ at the three
Iosco County facilities in the last year and that ‘‘ITT has
shown its commitment to you and Iosco County by adding
meaningful jobs and stability.’’ It refers to the Petoskey and
Guardian Industries strike leaflets and states: ‘‘Our working
together has made our plants a success.’’ (C.P. Exhs. 5iiii
and 5pppp.)
Earlier that month, on March 6, the Company distributed
a four-page ‘‘GET ALL THE FACTS’’ leaflet, which states
in part that ‘‘ITT Automotive is not going to give in to un-
reasonable demands’’ and ‘‘The only thing [UAW] could do
about it is STRIKE.’’ It also states that the Company
‘‘would bargain in good faith. But we would bargain very
hard! You have no guarantee that you would end up with as
good a wage and benefit package as you have now!’’ (C.P.
Exh. 5uuuu.)
None of the literature reveals any ‘‘unreasonable de-
mands’’ that UAW had made or was likely to make, causing
a strike. The statement about good-faith bargaining in the
March 6 leaflet—the Company’s only indication in all its
preelection campaign literature that it would be willing to en-
gage in ‘‘good faith’’ bargaining—was accompanied by the
emphasized warning that it would bargain ‘‘very hard!’’ and
the further emphasized warning that the employees may not
‘‘end up with as good a wage and benefit package as you
have now!’’
I find that this good-faith bargaining statement, in the con-
text of the two warnings and the Company’s extensive strike
literature, reasonably tended to convey to employees the fol-
lowing message. The Company may regard any proposed im-
provement in the present wage and benefit package to be an
‘‘unreasonable’’ demand, giving the employees no alternative
to risking their jobs by going on strike for any improvement.
3. Job transfers to Mexico
Before the election the Company displayed large ‘‘MEX-
ICO TRANSFER JOB’’ signs on shrink-wrapped pallets of
machinery in plants 6 and 7 and on a shrink-wrapped alu-
minum air line assembly table in the employee parking lot
at the Oscoda facility, awaiting shipment to the Company’s
plant in Guaymas, Mexico (Tr. 395–409, 415, 444–446, 476,
479; R. Exh. 50).
The signs, on bright pink paper with black lettering—
‘‘MEXICO’’ in 3-3/4’’ type and ‘‘TRANSFER JOB’’ in 1-
3/4’’ type, with smaller type at the bottom—read (C.P. Exh.
7; Tr. 396):
MEXICO
TRANSFER JOB
PER SCHEDULE
THIS JOB WILL TRASNSFER [SIC]
WHEN BANK IS COMPLETE.
The Company contends in its brief (at 37) that ‘‘Because
there is no evidence that the Employer prepared this flier, it
must be assumed that it was prepared by a third party.’’ As-
sembler Wayne Yoesting, however, credibly recalled that a
stack of the ‘‘MEXICO TRANSFER JOB’’ signs was dis-
played at the time—about 2 months before the election—on
the supervisor’s desk, located in plant 7 near the main aisle
leading through the overhead door into plant 6 (Tr. 399–403,
407–408).
When a group of employees were standing around the
desk before their shift, talking about what the signs might
mean, Yoesting asked Supervisor William Wyrock (who did
not testify) why the signs were there. Wyrock gave no expla-
nation, but acknowledged them as company signs by telling
him ‘‘something more or less like mind my own business’’
and ‘‘To read it and it should be self-explanatory.’’ (Tr. 407–
408, 433.)
Although the signs state that the job would be transferred
to Mexico ‘‘when bank is complete’’ (meaning when the in-
ventory of those parts was built up), the signs were displayed
on the machines and assembly table after production of the
parts had ceased. The signs were on shrink-wrapped pallets
of machinery awaiting shipment in plants 6 and 7 and on the
shrink-wrapped table, which had been moved to the em-
ployee parking lot where the sign was ‘‘in plain view.’’ (Tr.
412–414, 444–446.)
I infer that the purpose of displaying the ‘‘MEXICO
TRANSFER JOB’’ sign on the machines and table was to
dramatize during the election campaign the sending of jobs
to Mexico. I discredit General Supervisor Richard
Karbowski’s claim, ‘‘I don’t think I even saw’’ it. (Tr. 604.)
From his demeanor on the stand he did not appear to be a
candid witness.
Also before the election, the Company brought employees
from its Mexico plant to videotape jobs both at the Oscoda
and Tawas City facilities and was announcing the transfer of
jobs to Mexico in employee meetings (Tr. 395, 410, 443,
494–495, 509–513).
Previously at the Oscoda facility, as credibly testified by
master craftsman Raymond Marchionna (who has worked
there 9-1/2 years), the Company had made a practice when
resurfacing a plant floor to ‘‘shove half’’ of the equipment
‘‘over to one side, resurface that area, wait a day or two for
it to dry and then shove everything over to the other half’’
to finish the resurfacing (Tr. 766–767).
During the election campaign, when the Oscoda plant 5
floor was scheduled to be resurfaced, the Company arranged
for four ‘‘huge’’ rented storage trailers to be delivered to the
facility on the night before the resurfacing was to begin. The
trailers were then loaded overnight and parked in the em-
ployee parking lot. This was the first time that the Company
rented trailers to be brought in to vacate a plant for resur-
facing. (Tr. 656, 669–671, 679–680.)
By the next morning, about 80 percent of the equipment
had been loaded onto the trailers. The whole floor was
empty, except for four large presses and for equipment
moved to one end of the plant under a mezzanine. The paint-
ing contractor resurfaced the empty area, then returned and
resurfaced the remaining area. (Tr. 656–659, 767; R. Exhs.
47–53.)
The next morning when the resurfacing began, after the
overnight loading of the trailers, plant 6 employee Scott
Mead thought that they had ‘‘wiped the whole’’ plant 5
clean, taking ‘‘all of the machinery out.’’ From his viewpoint
in plant 6, which is separated from plant 5 by a fire wall and
a large overhead door, he did not see the remaining presses
and the equipment moved under the mezzanine. (Tr. 447–
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614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
448, 480.) Karbowski admitted that ‘‘It looked moved out.’’
(Tr. 621.)
Mead credibly testified about the comment of one union
supporter (Tr. 449–450, 483):
I had a supporter come up to me, and they were
aware that they were going to redo the floors, and with
the threats that they were [making] about moving the
company to Mexico, this employee told me they proved
to him that they could pack up and move overnight,
and he told me that he had to back out of [the Union].
. . . .
Q. [BY MR. MACK on cross-examination] But every-
body knew why these machines were moved out there,
to resurface building 5.
A. Well, the employee that I stated earlier, it was a
shock to him that the machines were being taken out
and that they did not know that the machines were
going out of the building.
Q. But they knew that the . . . .
A. And the next day when they came in and the ma-
chines were gone, yeah, they knew.
At the Tawas City plant 2, the Company demonstrated the
ease of transferring jobs in a different way. There the em-
ployees assemble air vacuum harnesses, working at portable
stations or ‘‘boards’’ that contain all the testers and compart-
ments for the components and places for glue, clips, and tape
wraps for each part. The boards are kept on the plant floor
or in the adjoining warehouse area for use when the cus-
tomer needs replacement parts. (Tr. 491–494, 498–507, and
515–521.)
One afternoon during the election campaign, assembler
Karen Richardson saw three of the boards loaded on Mainte-
nance Supervisor Gary Simmons’ three-quarter ton pickup
truck, which was parked by the main entrance door at shift
change. Simmons was ‘‘standing at the back of his truck.’’
Being curious, Richardson waited and watched for half an
hour and Simmons remained standing there ‘‘the whole
time.’’ Richardson credibly testified on cross-examination: ‘‘I
think [the Company] was trying to show us how easy it is
to remove boards, that they can just use a pickup truck.’’
(Tr. 495–498, 501–502, 516–519.)
Simmons did not testify and the Company offers no expla-
nation for his conduct.
4. Posted ‘‘I NEED MY JOB!’’ sign
The Company’s loss-of-jobs campaign theme was further
extended by the posting of ‘‘I NEED MY JOB!’’ signs at
the large Oscoda facility.
A majority of the bargaining unit employees work in the
four plants (numbered 4 through 7) at the Oscoda facility
(Tr. 526–527). A main aisle connects the four plants, through
overhead doors in the fire walls separating them. (Tr. 235;
C.P. Exh. 6.) The lunchroom is on the west side of plant 6
below a mezzanine where the conference room, upstairs lab,
and six or seven management offices (including Karbowski’s
office) are located. (Tr. 382–384, 538–540.)
The 8-1/2’’ by 11’’ sign, with black lettering on white
paper and with a diagonal line through an encircled
‘‘UAW,’’ reads (C.P. Exh. 8):
DON’T WANT IT
UAW
DON’T NEED IT
I NEED MY JOB!
About a month before the election, as plant 6 employee
Mead credibly testified, he first saw the signs ‘‘taped in two
or three different windows’’ in management offices on the
balcony ‘‘and I believe I remember seeing one’’ in the Com-
pany’s glass-covered and locked bulletin board near the
lunchroom. (Tr. 450–453.)
Mead (who impressed me most favorably by his demeanor
on the stand as a truthful witness) further testified that the
signs ‘‘had been taped in their office windows facing out to
the floor,’’ in ‘‘plain view’’ of people in the plant. He did
not see anyone from management or supervision putting up
the signs, but ‘‘the employees can’t go up there and put them
up. . . . they’re not allowed up there without management
personnel.’’ (Tr. 451–454.)
Karbowski—who as found gave discredited testimony that
‘‘I don’t think I even saw’’ the ‘‘MEXICO TRANSFER
JOB’’ sign that was displayed on shrink-wrapped machines
in plants 6 and 7 (under his supervision)—first positively de-
nied ever seeing the ‘‘I NEED MY JOB!’’ sign (Tr. 526,
565). On cross-examination, however, he at least implied that
he had seen it.
When asked on cross-examination if he was positive that
the sign was not posted during the election campaign on em-
ployee Ellen Macklem’s window in the upstairs lab,
Karbowski answered, ‘‘No, I’m not positive on that one’’ be-
cause ‘‘I don’t go that way that often to the south end
steps.’’ He then admitted yes, it ‘‘could have been posted’’
at her window. (Tr. 645–646.)
Floor Supervisor Sandra Lawlor likewise denied seeing the
sign. According to her, she saw a similar sign without the
words, ‘‘I NEED MY JOB!,’’ hanging in the upstairs lab
window where hourly employee Macklem works. (Tr. 730–
731, 732–733.)
Lawlor, as well as Karbowski, did not appear to be a can-
did witness. I discredit their denials and find that the Compa-
ny’s ‘‘I NEED MY JOB!’’ sign was posted during the latter
part of the election campaign at least on two or three dif-
ferent windows of upstairs management offices, if not also
on a company bulletin board near the lunchroom.
5. Preelection speeches
a. Speeches by Davies and Treglown
Robert Davies (who did not testify) is manager of Fluid
Handling Systems at the corporate headquarters in Auburn
Hills, Michigan. In his approximately 30-minute speech to
employees he talked about ITT plants closing, profitability,
and hard bargaining. It is undisputed that when he spoke at
the East Tawas plant about the closing of a particular union
plant because it was not profitable, employee inspector Sher-
ry Spalding asked was it not true ‘‘that you closed’’ it be-
cause it was merged with another plant. He admitted this was
true. (Tr. 134, 138–139; R. Exh. 50.)
At the Oscoda facility, as assembler Venita Pardonnet re-
ported to the company counsel in her May 10 pretrial state-
ment (G.C. Exh. 13, p. 6; R. Exh. 9, p. 2), Davies stated in
a speech that
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. . . if the 3rd party [the Union] got in and the Com-
pany did not make a profit he Bob [Davies] would shut
the plant down. Bob said IF we did not believe [it], he
could show us the 3 plants where the third party got
in and the Company did not make a profit and he shut
them down.
It is undisputed, as Pardonnet credibly testified, that Da-
vies also said that ‘‘just because we had big equipment and
a new expansion in Oscoda, not to think that he wouldn’t
shut that one down’’ (if it became unprofitable) (Tr. 231).
George Treglown (who also did not testify) is the human
resources manager. It is undisputed, as Spalding testified,
that at the East Tawas plant Treglown told employees that
the Union came in at different places where he had worked
and the plants closed (Tr. 147). Spalding did not, however,
hear anyone directly state that the plant ‘‘would close just
because the Union won the election’’ (R. Exh. 16, p. 4).
It is also undisputed that in one of Treglown’s speeches
at the Oscoda facility, as employee Pardonnet credibly testi-
fied (Tr. 197–198, 318; G.C. Exh. 13, pp. 6–7; R. Exh. 9,
p. 2):
George [Treglown] stated that if we voted the union
in that we would probably have to go to Detroit to ne-
gotiate a contract. That during this time that we [on the
negotiating committee] would not be receiving any pay
from the company or the union.
That we get up there and the company would bargain
hard that we would get frustrated because we were get-
ting no pay and things would disintegrate [meaning the
‘‘whole negotiating process’’].
. . . .
That the company would negotiate real hard with us,
and that everything would just bog down and we would
all get frustrated and it would just disintegrate. [Empha-
sis added.]
b. Ralph Iorio’s March 28 speech
(1) Setting of the speech
Ralph Iorio is president of the Company’s fluid handling
division, which consists of 12 facilities in the United States,
Canada, and Mexico, including the three facilities located in
the seashore towns on Lake Huron in Iosco County, north-
east Michigan (R. Br. at 26; R. Exh. 50; C.P. Exh. 5pppp,
p. 1).
On March 28, 2 days before the election, President Iorio
gave a 10-page written speech at the three facilities (Tr. 92,
515; G.C. Exh. 2). The speech followed the Company’s dis-
tribution of a total of 93 leaflets of campaign literature (160
pages) describing eight lost strikes in the last 19 years. As
found, the strikes were UAW, IAM, Paperworkers, and Rub-
ber Workers strikes at five different ITT divisions and three
other employers. He gave the speech the day after the Com-
pany distributed its four final leaflets (45 pages), concerning
strikes called in 1976, 1978, 1979, and 1986—two UAW
strikes at different ITT divisions and one UAW and one IAM
strike at other employers (C.P. Exh. 5).
Iorio’s speech at the three plants also followed the re-
peated references to plant closings in speeches by other offi-
cials. It likewise followed the announcements at employee
meetings of job transfers to Mexico, the Company’s bringing
employees from its Mexico plant to videotape jobs, and the
displaying of large ‘‘MEXICO TRANSFER JOB’’ signs on
shrink-wrapped machines and equipment being sent to its
Mexico plant.
The speech by this official from the corporate headquarters
in Auburn, Michigan also followed the Company’s prac-
tically emptying plant 5 overnight onto rented trailers and its
parking, by the plant 2 main entrance at shift change, a pick-
up truck loaded with three of the plant’s work stations, dem-
onstrating the ease of transferring jobs. The ‘‘I NEED MY
JOB!’’ sign was posted on windows of management offices
at the Oscoda facility.
(2) Climax of loss-of-jobs campaign theme
President Iorio began his March 28 speech with an omi-
nous implication that the very survival of the thriving, ex-
panding plants was at stake, climaxing the Company’s loss-
of-jobs theme in the election campaign (G.C. Exh. 2, p. 1):
We called all of you together this [morning, after-
noon, evening] to talk about a subject that is important
to all of us. That is the operation and viability of our
plants in Tawas City, East Tawas, and Oscoda. [Em-
phasis added.]
In the 10-page speech, Iorio next discussed (pp. 1–3) the
global economy and stated that its products ‘‘must be pro-
duced where we can be competitive and the Company makes
this determination [emphasis added].’’ He continued:
You should know that whenever we become non-
competitive in a product at these plants, our competi-
tion—worldwide—is waiting to gobble it up. We are
fortunate to have a growing operation in Mexico head-
ed up by one of our own—Bob Zimcosky—where we
are able to produce some products when we become
non-competitive here in Northern Michigan. We are
now trying to develop our plants in Fluid Handling to
enable us to move product from one plant to another;
so if one plant is unable for any reason to produce the
product we can move it to our own plants and not lose
it to competition.
He cited (pp. 2–3) examples of products lost to competi-
tion, stated that customers ‘‘have continued to drive down
the price they pay us,’’ yet ‘‘our wage and benefit package
at these plants compares very favorably to other employers,’’
contrary to what ‘‘the UAW organizers are trying to con-
vince you.’’ He stated (p. 4):
We cannot survive here if we continue to lose prod-
uct . . . even to our own plant in Mexico.
We have the necessary ingredients for survival here.
We have an excellent work force in both hourly and
salary. Since these plants began operation here in Iosco
County, the Company has grown from as few as 20 to
over 900 employees. [Emphasis added.]
Iorio later stated (p. 5), ‘‘I know the UAW made you a
lot of promises because they always do.’’ He then mentioned
three UAW strikes (in 1976, 1986, and 1990) that the Com-
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616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pany had described in 122 pages of campaign literature and
added (pp. 5–6, 8):
Look at our own ITT Automotive plants of Ithaca,
Rochester and Williamston all in Michigan, all closed
and all affecting hundred of former UAW members.
. . . .
I have run a number of plants during my career,
union and nonunion, and, wherever there has been a
union, sooner or later there were problems—problems
that ultimately affect the efficiency of the plant. What
we don’t need here are more problems.
Iorio nowhere stated in the written speech that the Com-
pany would bargain in good faith to reach an agreement if
the Union was selected. Instead he spoke only of a break-
down in bargaining when the Company says ‘‘No,’’ stating
(p. 9):
I don’t know what this union would do when we say
‘‘No’’ to demands we consider unreasonable. In some
negotiations which we have had, the Union has called
a strike. . . . In some cases, we have permanently re-
placed striking employees. In other cases, we have
moved the work and closed the plant especially where
light assembly or manual work was being done and the
work was easily transferred. You know what has hap-
pened at some ITT plants where there were strikes.
DON’T—LET IT HAPPEN HERE.
I can’t think of one example where a union has made
a plant more productive, more efficient, or more secure.
Even the existence of a union at a plant makes our cus-
tomers nervous because they know that, whenever there
are unions, there can be strikes—strikes which impact
their ability to receive the product. That’s the reason
they insure that they can move the product to other
plants.
DON’T LET THE UAW CREATE PROBLEMS FOR
ALL OF US—VOTE ‘‘NO’’ ON MARCH 30TH.
(3) Veiled prediction of job losses
Read closely, President Iorio’s lengthy speech does not
contain any explicit threats to the employees’ jobs at the
Company’s Oscoda, Tawas City, and East Tawas plants if
the employees selected the Union to represent them.
I find, however, that this speech about the ‘‘viability’’ of
the three plants—particularly in the context of the Compa-
ny’s other speeches, literature, and conduct—was a veiled
prediction of job losses from strikes, job transfers, or plant
closure.
The evidence shows that the Company soon learned that
the speech left the impression, even on Union Organizer
Pardonnet, that the plant would close if the employees se-
lected the Union. On May 10, soon after the election, the
Company’s counsel took Pardonnet’s statement in prepara-
tion for trial. The counsel gave her the assurances required
in Johnnie’s Poultry, 146 NLRB 770, 774–775 (1964). (Tr.
203–205, 247–250.)
When writing the nine-page handwritten statement, counsel
Curtis Mack omitted what Pardonnet said about the impres-
sion Iorio gave in his speech. He wrote only that ‘‘Mr. Iorio
never threatened at anytime to close the plant.’’ (G.C. Exh.
13, pp. 5–6; R. Exh. 9, p. 2.)
After Pardonnet read over the entire statement, which con-
cluded with a certification of its correctness, the counsel told
her (and added at the end of the statement) that ‘‘I could
make any changes or correction I desired to ‘make.’’ While
reading over the statement, she had told the counsel that
something on another subject was missing and asked why it
was not in there. Receiving no response, she ‘‘did not pursue
it,’’ not knowing at that time ‘‘whether I could tell them that
I wanted it in there.’’ (Tr. 263–265, 268–274; R. Exh. 8, p.
7.)
When advised that she could make changes, Pardonnet had
the counsel add the omitted part about the impression Iorio
gave in his speech. He wrote the following in the left margin
on page 6 of the statement (G.C. Exh. 13):
Mr. Iorio emphasized things, he gave the impression
that the plant would close. He never said the plant
would close if the Union won the election, but I left
the meeting with the impression that the plant would
close if the union won the election. [Emphasis added.]
The evidence also shows that one of the Company’s super-
visor witnesses was under a similar impression. Floor Super-
visor Lawlor admitted on cross-examination that ‘‘Yes,’’ she
was ‘‘concerned’’ that ITT might close the plant if the UAW
won the election. (Tr. 730.)
6. Contentions of the General Counsel and the Union
The General Counsel contends in his brief (G.C. Br. 8)
that Iorio’s speeches went beyond the scope of Section 8(c)
of the Act. ‘‘His repeated references to plant closing and the
inevitability of strikes implied, without an objective founda-
tion, that a vote for union representation would lead to plant
closure and/or loss of jobs.’’
The General Counsel also contends (G.C. Br. 5) that
Treglown’s comments ‘‘constitute nothing less than a warn-
ing that employees’ organizing efforts and the possible selec-
tion of the Union as their bargaining agent would be an exer-
cise in futility because, as Treglown put it, [the Company’s]
conduct would cause the entire negotiation process to ’disinte-
grate.’’’
The Union, in support of its election objections, contends
in its brief (U. Br. 8–10):
We have now entered the post-NAFTA era of em-
ployer threats and intimidation. It appears that the new-
est and most effective way for employers to instill fear
into the minds of employees is to threaten that jobs will
be lost to Mexico if union is voted in. . . . [The Com-
pany] did not claim, or even purport to claim, that the
move to Mexico would be due to economic hardships
beyond its control. In fact, the [Company] made certain
that the employees were positive that if the Union won
the election, their jobs were going to Mexico.
Regarding the Company’s 160 pages of campaign lit-
erature, including 86 leaflets (totaling 88 pages) of news-
paper clippings and press releases on the 1990 strike in Eas-
ton, Pennsylvania, the Union contends (at 13–14):
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The employees were barraged with ongoing accounts
of striking unionized plants in Michigan as well as
other States. . . . They received a daily update of a
long hard strike in Pennsylvania where permanent re-
placements took the jobs of striking employees. Nearly
every day employees were given headlines to read of
strike violence and plant closings. . . . Even the signs
in management office windows warned employees that
they would lose their jobs if they chose to vote for the
Union.
. . . .
This literature gave words to all of the innuendo and
inferences present in management’s antics. It is not co-
incidental that the news stories distributed by ITT
would speak of job loss, and that a truck filled with
ITT customers’ boards would then be displayed in front
of the employee entrance. Nor were the stories of plant
closings and the loss of jobs unrelated to a plant-full of
equipment found in the employees parking lot in rented
trailers, ready for easy transport to other locations.
Many of the news stories were specifically cited in
Ralph Iorio’s 25th hour speech, as well as the speeches
of George Treglown and Robert Davies, and served as
a reminder of the earlier threats. The [Company] made
certain that every employee would believe that their job
was in immediate jeopardy when the election occurred.
Regarding Treglown’s assurance that the whole negotiating
process would break down if the Union came in, the Union
contends (U. Br. at 16) that the ‘‘totality of the cir-
cumstances in this case warrants a find that the comments re-
garding bargaining futility were objectionable.’’ Regarding
plant closings, it contends (U. Br. at 16):
Further, no evidence was offered by the [Company] that
either Mr. Davies or Mr. Treglown based their com-
ments of plant closings on objective facts or demon-
strably probable consequences beyond the [Company’s]
control. Therefore, both Mr. Davies’ and Mr.
Treglown’s comments in their captive audience speech-
es should be found objectionable.
Regarding President Iorio’s captive audience speech 2
days before the election, the Union contends (U. Br. at 16–
17):
Although this speech is just one of the many job loss
messages communicated to employees by ITT manage-
ment, the speech summarizes all of the objectionable
acts committed by ITT during the critical period.
. . . .
This rhetoric [of Iorio that ‘‘We cannot survive here
if we continue to lose product . . . even to our own
plant in Mexico’’] alone is enough to ensure that the
employees understand that if the union gets in, work in
going to Mexico. These words just reiterated the mes-
sage that management had hammered into the mind of
the employees through clearing out plant 5 in the mid-
dle of the night, packing up large pieces of equipment
with ‘‘MEXICO TRANSFER JOB’’ signs, and having
[employees from the Mexico plant] videotaping the
workers doing their jobs in order to make training vid-
eos. These acts were not accidental inferences; the tim-
ing was no coincidental. As the words of Ralph Iorio
illustrate, these acts were all part of a central theme of
the [Company’s] campaign—if the UAW wins, the em-
ployees will lose their jobs.
Regarding Iorio’s references to union promises, strikes,
and plant closings, the Union contends (at 17–18):
Once again, the words themselves are objectionable
threats. But in the context of the propaganda distributed
to the employees by management, it is irrefutable that
the message management is sending is that if the Union
is voted in, the Union will strike and/or plant will close,
but either way the employees will lose their jobs.
After citing Iorio’s message that ‘‘In some case we have
permanently replaced striking employees’’ and ‘‘In other
cases we have moved the work and closed the plant’’ and
his message, ‘‘DON’T LET IT HAPPEN HERE,’’ the Union
contends (at 18–19):
These were the words the employees were forced to
listen to less than 48 hours before they had to walk
. . . past the [‘‘I NEED MY JOB!’’] sign hanging in
management’s window as they went into the polls to
cast their ballots. This atmosphere, created by manage-
ment, was coercive and intimidating and the election
should be overturned due to these severe violations of
the Act.
7. Contentions of the Company
The Company asserts in its brief (at 4, 32) that ‘‘The Gen-
eral Counsel and the [Union] alleged that the [Company]
threatened employees with strikes, plant closings, and bar-
gaining with futility if the [Union] were elected’’ and that
the Union also alleges that ‘‘through constant predictions of
violence, strikes, loss of customers, and economic det-
riment,’’ the Company ‘‘conducted a campaign of fear and
intimidation,’’ interfering with ‘‘the free and fair election.’’
In response, the Company contends (at 4) that it did not
threaten its employees with strikes, plant closings or futility
if the Union were elected, nor did it conduct a campaign of
fear and intimidation to discourage support for the Union.
The Company further contends in its brief (at 27–30):
Nothing in Mr. Iorio’s speech violates the Act. Mr.
Iorio’s speech as well as Mr. Treglown and Mr. Davies’
comments are protected by 8(c) of the Act. . . . Sec-
tion 8(c) permits an employer to present its views re-
garding unionization. . . . Similarly, an employer may
discuss with employees the effects of unionization on
its other plants, including a reference to shutdown of
other plants.
. . . .
The Board has held that an employer’s statements re-
garding the breakdown of negotiations and the possibil-
ity of a strike in the absence of threats and other unlaw-
ful acts are protected by Section 8(c) of the Act.
Similarly, statements made by Mr. Iorio, Mr.
Treglown, and Mr. Davies regarding the possible ef-
fects of unionization on [the Company’s] plants were
permissible under Section 8(c) of the Act. . . . [Iorio]
never stated or implied that unionization played any
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618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
role in closing plants. Mr. Iorio said strikes were pos-
sible if the parties could not reach an agreement after
good faith negotiations [although good faith bargaining
was nowhere mentioned in his written speech in evi-
dence, G.C. Exh. 2].
Neither General Counsel or the [Union] offered any
evidence to show that any employees were affected by
the [Company’s] campaign rhetoric.
Regarding what it asserts is the Union’s argument that ‘‘in
an attempt to coerce its employees,’’ the Company ‘‘subtly
threatened to move work to its Mexico facility’’ and ‘‘cre-
ated the impression of packing up its plant at night and post-
ed various flyers throughout the plant’’ to ‘‘maximize its
threats,’’ the Company contends in its brief (at 34) that the
Union ‘‘failed to establish that any of these incidents oc-
curred or that they were authorized or ratified.’’
The Company also contends (at 35) that ‘‘even assuming
arguendo that employees from [the Company’s] Mexico plant
were performing the videotaping [of employees performing
their jobs], ‘‘the evidence is insufficient to establish an im-
plied threat to transfer work to its Mexico plant if employees
selected the Union.’’
The Company also contends in its brief (at 35–37) that the
Union
. . . did not establish if [the ‘‘MEXICO TRANSFER
JOB’’ sign] was observed during the critical period or
if it was authored by [the Company] or some employee.
Indeed, Mr. Yoesting could not recall if he observed
this document attached to this equipment during the
critical period or if he observed it prior to the filing of
the petition.
Because there is no evidence that the [Company]
prepared this flier, it must be assumed that it was pre-
pared by a third party.
To the contrary, as found, employee Yoesting credibly re-
called that about 2 months before the March 30, 1995 elec-
tion (long after the February 11, 1994 filing of the petition)
he saw the signs not only on shrink-wrapped pallets of ma-
chinery in plants 6 and 7, but also saw a stack of the signs
displayed on Supervisor Wyrock’s desk, where Wyrock ac-
knowledged them as company signs by telling him ‘‘some-
thing more or less like mind my own business’’ and ‘‘To
read it and it should be self-explanatory.’’
I reject this unsupported contention and also the Compa-
ny’s similarly unsupported contentions in its brief (at 39–42)
regarding the overnight loading of plant 5 equipment in
rented trailers, the supervisor’s parking his pickup truck load-
ed with plant 2 ‘‘boards’’ at the main entrance at shift
change, and the posting of the ‘‘I NEED MY JOB!’’ signs
on the windows of management offices at the Oscoda facil-
ity.
8. Supreme Court’s standards
The Supreme Court in NLRB v. Gissel Packing Co., 395
U.S. 575, 618–620 (1969), established the standards for
‘‘balancing’’ an employer’s Section 8(c) right—to express
‘‘any views, argument, or opinion’’ in communicating his
views to his employees, so long as such expression contains
‘‘no threat or reprisal or force or promise of benefit’’—with
the employees’ right to self-organization, holding (emphasis
added, footnotes omitted):
[A]n employer’s rights cannot outweigh the equal rights
of the employee to associate freely, as those rights are
embodied in § 7 and protected by § 8(a)(1) and the pro-
viso to § 8(c). And any balancing of those rights must
take into account the economic dependence of the em-
ployees on their employers, and the necessary tendency
of the former, because of that relationship, to pick up
intended implication of the latter that might be more
readily dismissed by a more disinterested ear.
. . . Thus, an employer is free to communicate to
his employees any of his general views about unionism
or any of his specific views about a particular union,
so long as the communications do not contain a ‘‘threat
of reprisal or force or promise of benefit.’’ He may
even make a prediction as to the precise effect he be-
lieves unionization will have on his company. In such
a case, however, the prediction must be carefully
phrased on the basis of objective fact to convey an em-
ployer’s belief as to demonstrably probable con-
sequences beyond his control or to convey a manage-
ment decision already arrived at to close the plant in
case of unionization. . . . If there is any implication
that an employer may or may not take action solely on
his own initiative for reasons unrelated to economic ne-
cessity and known only to him, the statement is no
longer a reasonable prediction based on available fact
but a threat of retaliation based on misrepresentation
and coercion, and as such without the protection of the
First Amendment. We therefore agree with the court
below that ‘‘[c]onveyance of the employer’s belief, even
though sincere, that unionization will or may result in
the closing of the plant is not a statement of fact unless,
which is most improbable, the eventuality of closing is
capable of proof.’’ . . . As stated elsewhere, an em-
ployer is free only to tell ‘‘what he reasonably believes
will be the likely economic consequences of unioniza-
tion that are outside his control,’’ and not ‘‘threats of
economic reprisal to be taken solely on his own voli-
tion.’’
[T]he Board has often found that employees, who are
particularly sensitive to rumors of plant closings, take
such hints as coercive threats rather than honest fore-
casts.
. . . [An employer] can easily make his views
known without engaging in ‘‘brinkmanship’’ when it
becomes all too easy to ‘‘overstep and tumble [over]
the brink.’’ . . . At the least he can avoid coercive
speech simply by avoiding conscious overstatements he
has reason to believe will mislead his employees.
9. Other precedents
The Company primarily relies on the Board’s decision in
UARCO, Inc., 286 NLRB 55, 56–58 (1987). There the ad-
ministrative law judge found that in the employer’s
preelection campaign literature, which contained no assur-
ance that it ‘‘would bargain in good faith or would not as-
sume a regressive bargaining position,’’ the employer
‘‘threatened employees with plant closure and the futility of
selecting a bargaining representative.’’
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The majority of the Board panel disagreed and found (at
58) that the Company’s ‘‘oral assurances provided substantial
context’’ for the campaign literature, that ‘‘oral and written
statements must be construed together to determine their rea-
sonable tendency to coerce the employees,’’ and that ‘‘the
literature and oral statements, considered as a whole, are law-
ful expressions of opinion protected by Section 8(c).’’
Much in Member [later Chairman] Stephens’ dissent is
particularly applicable to the facts of the present case in
which both the speeches and campaign literature are alleged
to be objectionable. He wrote (287 NLRB at 60–62) that
. . . on viewing the documents in toto—as the [em-
ployer] undoubtedly intended the employees to view
them . . . I conclude that they go well beyond ‘‘[m]ere
references to the possible negative outcomes of union-
ization.’’ Rather they make veiled suggestions of plant
closure and job loss [emphasis added] that are unlawful
under the test set out in [Gissel]; and they suggest that
any improvements in the employees’ working condi-
tions once the [union] is voted in will bear the price of
a ‘‘union-forced strike.’’
. . . .
[The company] had no evidence of what the
[union’s] bargaining position would be . . . [and] a rea-
sonable inference was that [the employer] might close
a plant simply because it did not want to operate a
unionized plant. . . . The [company] had previously
suggested . . . where it might send the work of the em-
ployees whose jobs were thus destroyed—to its non-
union plants in four other States, who would be ‘‘glad
to get our work.’’ These assertions are not the kinds of
‘‘carefully phrased’’ predictions based on ‘‘objective
fact to convey an employer’s belief as to demonstrably
probable consequences beyond his control’’ which the
Court in Gissel regarded as mere truthful communica-
tion under Section 8(c). . . . Rather these statements
carry the ‘‘implication’’ that were the employees to se-
lect the [union] as their bargaining representative, the
[company] might close the plant and transfer out jobs
‘‘solely on [its] own initiative for reasons unrelated to
economic necessity’’—statements of the kind that the
Gissel Court regarded as implicit threats of retaliation,
in violation of Section 8(a)(1) of the Act.
In TRW-United Greenfield Division, 245 NLRB 1135 fn.
1, 1144 (1979), a case cited in the Company’s brief (at 29)
on another point, the operations manager made a statement
that ‘‘we had two UAW plants which we had to close down
because they were no longer economical to operate.’’ The
Board held that ‘‘we agree with the Administrative Law
Judge’s finding that the statement was coercive and objec-
tionable because [the manager] gave the false impression that
the [union] was responsible for the plant closings.’’
In BI-LO, 303 NLRB 749, 750 (1991), enfd. 985 F.2d 123
(4th Cir. 1992), the Board held: ‘‘We affirm the judge’s find-
ing that the [company’s] February 1, 1988 mass mailing to
employees and its subsequent use in election campaign dis-
cussions with employees violated Section 8(a)(1) by implic-
itly threatening to close the Havre de Grace store if employ-
ees voted for union representation.’’ The Board found:
The document in question consisted of a cover letter
and reprints of 18 newspaper articles about store clos-
ings and/or employee job losses. Collectively, this lit-
erature was not restricted to conveying the legitimate
message that a union could not guarantee job security
against general economic adversity. Instead, it strongly
suggested that Havre de Grace employees now had job
security and that they would jeopardize this security if
they chose to be represented by the [union]. Indeed, the
cover letter stated, ‘‘Our constant effort to see that you
have a steady job is one of the many reasons you
should vote NO UNION on election day.’’ It thereby
implied that the [company’s] ‘‘constant effort’’ to pro-
vide job security might be abandoned if the employees
voted for union representation.
Concededly, some of the attached newspaper articles
indicate that the [union’s] economic actions had been a
factor leading to the closing of other employers’ stores.
The majority of the articles, however, fail to identify
union activity as a cause of store closings. In sum,
these articles fail to provide the necessary objective
basis for the [company’s] implicit claim that unioniza-
tion would imperil employee job security for reasons
beyond its control. Absent such a basis, the February 1
mass mailing and the followup usage of it reasonably
tended to threaten employees with the [company’s]
willingness to close the Havre de Grace store if em-
ployees voted for the [union].
In a recent case, Shelby Tissue, 316 NLRB 646 (1995), the
Board adopted a hearing officer’s finding that Ray Guenin,
the general manager, engaged in objectionable conduct dur-
ing an election eve speech in which he ‘‘repeatedly implied,
without objective foundation, that a vote for union represen-
tation would inevitably lead to plant closure.’’ The Board
further held:
In addition to those statements by Guenin which the
hearing officer specifically underscored in his opinion,
we note the same coercive implication in Guenin’s ref-
erence to the fate of another company’s mill. He stated,
‘‘The Paperworkers represented 1200 people at [the
other] mill. Now there’s only 650 left and they are
going to be out of a job.’’ Guenin offered no objective
evidence that the Paperworkers had done anything to
cause or to exacerbate problems at the [other] mill.
On the other hand, the court ruled in NLRB v. Pentre Elec-
tric, 998 F.2d 363, 368–371 (6th Cir. 1993), that truthful, ob-
jective statements to employees by officials of a nonunion
contractor on matters over which they had no control met the
Supreme Court’s Gissel standard and were protected under
Section 8(c).
One official told employees that many of the customers
did not employ union contractors and that ‘‘if we were union
contractors we would not have had the three large jobs we
were doing with those people.’’ The other official explained
that ‘‘some of our very good companies were very involved
in the open shop industry. . . . So, it would be difficult to
maintain those particular customers if we were a union con-
tractor and then if we were a union contractor, we’d have to
establish new customers.’’ The court held that the Board
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620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘bears the burden of demonstrating that an employer’s state-
ment is unlawful, either because it is not objective in nature
or because it is untruthful.’’
In Patsy Bee, Inc. v. NLRB, 654 F.2d 515, 517–518 (8th
Cir. 1981), the president of a nonunion company discussed
its precarious financial status with the employees and told
them that based on the established policies of Jantzen and
Artex (two key customers) against contracting with union
companies, he believed they would refuse to do business
with it if the employees unionized. After citing the Gissel re-
quirement of ‘‘objective fact’’ and ‘‘demonstrably probable
consequences,’’ the court held the president’s statements re-
flect his belief, ‘‘based upon objective facts, that unioniza-
tion could have an adverse economic impact’’ and in these
circumstances the statements were protected speech under
Section 8(c).
Similarly in Shenanigans, 723 F.2d 1360, 1364, 1367–
1369 (7th Cir. 1983), the court held that the prediction the
co-owner of a restaurant in Decatur, Illinois made in a
speech to employees that his company would fail if it was
unionized met the Gissel requirement that ‘‘the prediction
must be carefully phrased on the basis of objective fact to
convey an employer’s belief as to demonstrably probable
consequences beyond his control.’’ The co-owner told the
employees that he believed the restaurant business in Decatur
was too fragile for a restaurant to survive if it paid union
wage scales, pointing to the fact that only one restaurant in
Decatur was unionized and it was doing badly.
In its opinion in that case, however, the court distin-
guished, as follows (723 F.2d at 1368–1369), other cases in
which the predictions were not protected under Section 8(c):
NLRB v. Kaiser Agricultural Chemicals, 473 F.2d 374,
381 (5th Cir. 1973), where ‘‘The employees could rea-
sonably have inferred that these events [a litany of hor-
rors, including strikes, plant closings, and loss of bene-
fits] would result not from the inevitable forces of the
market, but from the deliberate acts of the company
taken in reprisal’’; and Gissel itself, where ‘‘the Board
could reasonably conclude that the intended and under-
stood import of [the message conveyed by a whole se-
ries of company speeches, pamphlets, leaflets, and let-
ters] was not to predict that unionization would inevi-
tably cause the plant to close but to threaten to throw
employees out of work regardless of the economic re-
alities,’’ 395 U.S. at 619, 89 S.Ct. at 1943.
10. Concluding findings
a. Ignored Supreme Court standards
The Company employs over 900 employees in the three
seashore towns. As the evidence shows, it engaged in an
election campaign that was obviously intended to create an
atmosphere of fear of loss of jobs—through strikes, job
transfers, or plant closures—at the Oscoda, Tawas City, and
East Tawas facilities if the employees voted for union rep-
resentation.
The principal question is whether the Company’s loss-of-
jobs campaign theme in its speeches, literature, and conduct
was, under the Supreme Court Gissel standards, protected
under Section 8(c) of the Act.
Contending in its brief (at 27–28) that Section 8(c) permits
an employer to present its views regarding unionization, the
Company cites only two sentences from the Gissel opinion
(395 U.S. at 618):
[A]n employer is free to communicate to his employees
any of his general views about unionism or any of his
specific views about a particular union, so long as the
communications do not contain a ‘‘threat of reprisal or
force or promise of benefit.’’ He may even make a pre-
diction as to the precise effect he believes unionization
will have on his company.
This excerpt from the opinion omits the following essen-
tial qualifications of that 8(c) right (395 U.S. at 618–619):
In such a case, however, the prediction must be care-
fully phrased on the basis of objective fact to convey
an employer’s belief as to demonstrably probable con-
sequences beyond his control . . . . if there is any im-
plication that an employer may or may not take action
solely on his own initiative for reasons unrelated to
economic necessity and known only to him, the state-
ment is no longer a reasonable prediction bases on
available fact but a threat of retaliation based on mis-
representation and coercion. . . . [c]onveyance of the
employer’s belief, even though sincere, that unioniza-
tion will or may result in the closing of the plant is not
a statement of fact unless, which is most improbable,
the eventuality of closing is capable of proof. . . . an
employer is free only to tell ‘‘what he reasonably be-
lieves will be the likely economic consequences of
unionization that are outside his control,’’ and not
‘‘threats of economic reprisal to be taken solely on his
own volition.’’ [Emphasis added.]
Establishing these standards for an employer’s lawfully
communicating his views to employees, the Supreme Court
held (395 U.S. at 617), as quoted above, that ‘‘balancing’’
the employer’s 8(c) rights with the employees’ right to self-
organization must take into account the economic depend-
ence of the employees on their employers and the ‘‘necessary
tendency’’ of the employees, because of that relationship,
‘‘to pick up intended implication’’ of the employers that
‘‘might be more readily dismissed by a more disinterested
ear.’’ The Court further observed (895 U.S. at 619–620) that
‘‘the Board has often found that employees, who are particu-
larly sensitive to rumors of plant closings, take such hints as
coercive threats rather than honest forecasts’’ (footnotes
omitted).
The Company ignores these qualifying standards in bal-
ancing the employer’s 8(c) right with the employees’ right to
self-organization.
b. No objective foundation for predictions
The evidence is clear that here, the Company made veiled
predictions of strikes, job transfers, plant closure, and loss of
jobs that were not ‘‘carefully phased on the basis of objec-
tive fact to convey an employer’s belief as to demonstrably
probable consequences beyond his control,’’ as required in
the Supreme Court’s Gissel standards.
In none of the Company’s extensive campaign literature
(93 leaflets, 160 pages) warning employees of strikes if they
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621ITT AUTOMOTIVE
voted for union representation, or in its campaign speeches
about strikes, job transfers, and plant closures, did this em-
ployer make any objective statement of ‘‘what he reasonably
believes will be the likely economic consequences of union-
ization that are outside his control’’ and not taken ‘‘solely
on his own volition.’’
This is not a case, such as NLRB v. Pentre Electric, above,
998 F.2d 363 (6th Cir. 1993), in which a nonunion contractor
made truthful, objective statements about losing its three
large nonunion jobs and the difficulty in maintaining the
nonunion customers who ‘‘were very involved in the open
shop industry.’’ Nor Patsy Bee, Inc. v. NLRB, above, 654
F.2d 515 (8th Cir. 1981), in which the president of a non-
union company, which was in a precarious financial condi-
tion, told employees that its two key customers had an estab-
lished practice against contracting with union companies and
that he believed they would refuse to do business with it if
the employees unionized. Nor Shenanigans, above, 723 F.2d
1360 (7th Cir. 1983), in which the employer told employees
he believed the restaurant business in the city was too fragile
for a restaurant to survive if it paid union wage scales, point-
ing to the fact that the only union restaurant was doing
badly.
Here the three facilities were a thriving, expanding part of
the Company’s fluid handling business, having added over
250 employees to the payroll during the year before the
March 30 election. As Division President Iorio pointed out
in his March 28 speech at all three facilities, ‘‘We have the
necessary ingredients for survival here. We have an excellent
work force in both hourly and salary.’’
The Company nowhere asserted as an objective fact that
the Big Three (unionized) auto companies would refuse to do
business with it if the employees selected the Union, that the
Union would demand wages and benefits that would make
the plants unprofitable or the products noncompetitive, or
that the Union would make ‘‘unreasonable’’ demands, caus-
ing a strike. There is no evidence of what the Union’s bar-
gaining position would be.
Yet, Iorio spoke in the written speech about ‘‘viability
[emphasis added] of our plants in Tawas City, East Tawas,
and Oscoda,’’ an ominous implication that the very survival
of the three plants was at stake. He then referred to the trans-
fer of jobs to ‘‘our growing operation in Mexico’’ and to
‘‘moving product from one plant to another,’’ pointing out
that ‘‘the Company makes this determination’’ where its
products will be produced.
Iorio also stated, ‘‘I know the UAW made you a lot of
promises because they always do’’ and referred to three
UAW strikes (two in 1976 and 1990 at ITT plants and one
in 1986 at another employer), which the Company had de-
scribed in 122 pages of campaign literature. He then stated:
‘‘Look at our own ITT Automotive plants of Ithaca, Roch-
ester and Williamston all in Michigan, all closed and all af-
fecting hundreds of former UAW members [implying, with-
out asserting as an objective fact, that UAW was responsibil-
ity for the closings].’’
In an earlier speech corporate official Davies, manager of
Fluid Handling Systems, told employees at the East Tawas
plant that he had closed three plants when the Union came
in and the Company did not make a profit, implying that the
Union was responsible for all three closings. When an em-
ployee asked if it was not true that he closed one of the
plants because the plant was merged with another plant, Da-
vies admitted this was true.
As discussed above, the Board agreed with the judge in
TRW-United Greenfield Division, above, 245 NLRB 1135
(1979), that the operations manager’s statement that the em-
ployer closed two UAW plants because they were no longer
economical to operate was coercive and objectionable be-
cause the manager ‘‘gave the false impression that the
[union] was responsible for the plant closings.’’ Similarly in
a recent case, Shelby Tissue, above, the Board specifically
held that the general manager’s statement—that ‘‘The Paper-
workers represented 1200 people’’ at a mill and ‘‘Now
there’s only 650 left and they are going to be out of a job—
was a coercive implication of the fate of the mill, the man-
ager having offered no objective evidence that the Paper-
workers had done anything to cause or to exacerbate prob-
lems’’ at the mill.
Davies told employees at the Oscoda facility that he could
show them three plants ‘‘where the [union] got in and the
Company did not make a profit and he shut them down’’ and
warned that ‘‘just because we had big equipment and a new
expansion in Oscoda, not to think that he wouldn’t shut that
one down’’ (if it became unprofitable). As indicated, there is
no evidence of what the Union’s bargaining position would
be, and the Company did not assert as an objective fact that
the Union would demand wages and benefits that would
make the plants unprofitable.
George Treglown, the human resources manager, told em-
ployees that the Union came in at different places where he
had worked and the plants closed—without asserting as an
objective fact that the Union was responsible for the clos-
ings.
On March 27 (3 days before the election) Gale Spallinger,
the general plants manager of ITT Automotive North Amer-
ica, sent the employees a letter, accompanied by four leaflets
concerning strikes dating as far back as 1976. The letter
states that ‘‘we have increased enrollment by over 250 em-
ployees’’ at the three Iosco County facilities in the last year
and that ‘‘ITT has shown its commitment to you and Iosco
County by adding meaningful jobs and stability,’’ and ‘‘Our
working together has made our plants a success.’’ In BI-LO,
above, the employer sent employees a mass mailing, consist-
ing of ‘‘a cover letter and reprints of 18 newspaper articles
about store closings and/or employee job losses.’’ The Board
found that this literature ‘‘strongly suggested’’ that the ‘‘em-
ployees now had job security and that they would jeopardize
this security if they chose to be represented by the [union].’’
In Iorio’s March 28 speech, he gave no assurance that the
Company would bargain in good faith if the Union was se-
lected. He spoke only of a breakdown in bargaining when
the Company says ‘‘No.’’ Without any evidence of what
UAW’s bargaining position would be, he told the employees,
‘‘I don’t know what this union would do when we say ‘No’
to demands we consider unreasonable ‘‘—stating that in
some negotiations the Union has called a strike, resulting in
permanent replacements or plant closure. He warned,
‘‘DON’T—LET IT HAPPEN HERE.’’
As the Supreme Court held in its Gissel decision, the
‘‘[c]onveyance of the employer’s belief, even though sincere,
that unionization will or may result in the closing of the
plant is not a statement of fact unless, which is most improb-
able, the eventuality of closing is capable of proof.’’ Here,
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622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Company has provided no indication that the eventuality
of closing is ‘‘capable of proof.’’
c. Statements not protected by Section 8(c)
In NLRB v. Shenanigans, above, 723 F.2d at 1360, the
court’s following reference to distinguishable cases in which
predictions were not protected under Section 8(c), is applica-
ble here (brackets in original):
NLRB v. Kaiser Agricultural Chemicals, 473 F.2d 374,
381 (5th Cir. 1973), where ‘‘The employees could rea-
sonably have inferred that these events [a litany of hor-
rors, including strikes, plant closings, and loss of bene-
fits] would result not from the inevitable forces of the
market, but from the deliberate acts of the company
taken in reprisal’’; and Gissel itself, where ‘‘the Board
could reasonably conclude that the intended and under-
stood import of [the message conveyed by a whole se-
ries of company speeches, pamphlets, leaflets, and let-
ters] was . . . . to threaten to throw employees out of
work regardless of the economic realities,’’ 395 U.S. at
619, 89 S.Ct. at 1943.
Having found that the Company made veiled predictions
of strikes, job transfers, plant closure, and loss of jobs that
were not ‘‘carefully phased on the basis of objective fact to
convey an employer’s belief as to demonstrably probable
consequences beyond his control,’’ as required in the Su-
preme Court’s Gissel standards, I find that the predictions
were not protected by Section 8(c) of the Act.
I therefore find, particularly in this context, that Division
President Iorio’s March 28 speech, which in itself was a
veiled prediction of job losses from strikes, job transfers, or
plant closure without objective foundation, was coercive and
interfered with the employees’ exercise of their Section 7
rights, violating Section 8(a)(1).
I sustain the Union’s Objection 2 (G.C. Exh. 1(p), p. 7)
that the Company ‘‘Conducted a campaign of fear and in-
timidation through constant predictions of violence, strikes,
loss of customers and economic detriment which the em-
ployer insinuated would inevitably result from a union vic-
tory’’ and find that the Company interfered with the employ-
ees’ free choice of representation.
d. Impression of bargaining futility
The complaint alleges that the Company about March
1995, by its agent George Treglown at the Oscoda plant, told
employees that it would be futile for them to select the
Union as their bargaining representative.
The Union’s Objection 5 (G.C. Exh. 1(p), p. 7) similarly
alleges that the Company ‘‘Created the impression of bar-
gaining futility.’’
As found, Human Resources Manager Treglown told em-
ployees in a speech that if the employees voted the Union
in, they ‘‘would probably have to go the Detroit to nego-
tiated a contract,’’ that the negotiating committee members
‘‘would not be receiving any pay from the Company or the
Union,’’ that ‘‘the Company would bargain hard,’’ and that
the employees ‘‘would get frustrated because we were get-
ting no pay and things would disintegrate [meaning the
‘‘whole negotiating process’’].
Treglown made this speech in the context of a March 6,
four-page ‘‘GET ALL THE FACTS’’ leaflet, which states in
part that ‘‘ITT Automotive is not going to give in to unrea-
sonable demands’’ and ‘‘The only thing [UAW] could do
about it is STRIKE.’’ The leaflet also states: ‘‘The Company
would bargain in good faith. But we would bargain very
hard! You have no guarantee that you would end up with as
good a wage and benefit package as you have now!’’
As found, this bargaining statement is the Company’s only
indication—in all its extensive campaign literature (93 leaf-
lets containing 160 pages) warning about strikes—that it was
willing to engaged in good-faith bargaining. It was accom-
panied not only by the emphasized warnings that it would
bargain ‘‘very hard!’’ and employees may not ‘‘end up with
as good a wage and benefit package as you have now!’’ but
also by the statement about ‘‘unreasonable demands.’’ None
of the literature reveals any unreasonable demands that UAW
had made or was likely to make, causing a strike.
Therefore, as further found, this good-faith bargaining
statement reasonably tended to convey to employees the fol-
lowing message. The Company may regard any proposed im-
provement in the present wage and benefit package to be an
‘‘unreasonable’’ demand, giving the employees no alternative
to risking their jobs by going on strike for any improvement.
Treglown’s speech was made in the context of Division
President Iorio’s March 28 speech, in which Iorio gave no
assurance that the Company would bargain in good faith, but
spoke of a breakdown in bargaining when the Company says
‘‘No’’ to ‘‘demands we consider unreasonable’’—stating that
in some negotiations the Union has called a strike, resulting
in permanent replacements or plant closure.
I find that in the context of the Company’s extensive cam-
paign literature warning about strikes, the ‘‘GET ALL THE
FACTS’’ leaflet, and Iorio’s March 28 speech, Treglown’s
speech reasonably created the impression of bargaining futil-
ity.
I therefore find that Treglown’s statements about the futil-
ity of selecting the Union was coercive and violated Section
8(a)(1).
I sustain the Union’s Objection 5 regarding bargaining fu-
tility and find that the Company further interfered with the
employees’ free choice of representation.
B. Other Coercive and Objectionable Conduct
1. Antiunion buttons
It is well established, as held in A. O. Smith Automotive
Products Co., 315 NLRB 994 (1994), that an employer vio-
lates Section 8(a)(1) when its supervisors distribute campaign
paraphernalia in a manner pressuring employees to make an
observable choice or open acknowledgment of their union
sentiments because this ‘‘effectively put[s] employees in the
position of having either to accept or reject the [employer’s]
proffer.’’
Theresa Whalen, a machine operator at the East Tawas
plant 3, credibly testified that Shift Supervisor Tony Orlando
approached her in the plant on March 29 (the day before the
election) and asked, ‘‘Hey, Theresa, where’s your button.’’
She answered, ‘‘I didn’t get one.’’ He said, ‘‘Well, come on
over to my desk and I’ll hook you up with one.’’ There he
gave her a ‘‘Vote No’’ button. (Tr. 69–70.)
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Later that day when employee Sherry Spalding noticed the
button, Whalen explained ‘‘the reason I had [the button] was
the conversation I had with Tony Orlando’’ and denied that
she was a traitor to the Union (Tr. 71).
At the Oscoda facility, as employee Pardonnet credibly
testified, she saw supervisors handing out antiunion buttons.
About 2 or 3 weeks before the election, Pardonnet saw Shift
Supervisor Daniel VonZynda with a plastic bag of antiunion
buttons. With Pardonnet nearby, VonZynda called employee
Mike Varney over and asked if he wanted any of the buttons.
Varney said yes and VonZynda gave him some. (Tr. 201–
202.)
About a month before the election, Pardonnet was in the
reject cage near Floor Supervisor Lawlor’s desk. Lawlor
‘‘called [employee] Loretta Warren over and wanted to know
if she wanted to wear one of the antiunion buttons. Warren
said, no, that she wasn’t wearing any pins and turned around
and walked off.’’ (Tr. 202.)
Whalen, as well as Pardonnet, impressed me as a truthful
witness. I discredit the denials of their testimony.
In each of the three incidents, the supervisor effectively
put the employee in the position of having either to accept
or reject the Company’s proffer of the antiunion button,
thereby pressuring the employee to make an observable
choice or open acknowledgment of the employee’s union
sentiments.
I therefore find that the Company coercively interrogated
employees about their willingness to wear antiunion buttons
to indicate that they would vote against the Union, in viola-
tion of Section 8(a)(1).
I sustain the part of the Union’s Objection 1 (G.C. Exh.
1(p), p. 7), alleging that the Company made the antiunion in-
signia available to employees, forcing them to make known
their preelection choices, and find that the Company further
interfered with the employees’ free choice of representation.
2. Removal of union literature
Sherry Spalding, an employee inspector on the third shift,
was ‘‘basically the only’’ employee putting union literature
in the lunchroom at the East Tawas plant 3. She credibly tes-
tified that on one occasion in mid-February, when she was
placing the literature on lunchroom tables, Shift Supervisor
Bruce Curtis entered the lunchroom and said (contrary to his
denial), ‘‘There’s Sherry cluttering up all my tables with her
union literature.’’ Spalding, however, did not see Curtis re-
move any of the literature, either on this occasion or on any
other occasion. (Tr. 131–132, 160, 701.)
Spalding continued to put out the union literature. She es-
timated that in the 6 weeks between this incident and the
election, ‘‘I put out literature about 20 or 25 times.’’ (Tr.
170.)
Two other East Tawas witnesses, machine operator Philip
Harris and operator Perry Shields claimed that about this
same time in mid-February, they saw Curtis removing union
literature from the lunchroom tables. They, however, gave
such inconsistent accounts of what happened that I cannot
rely on their testimony to support the General Counsel alle-
gation that the Company disparately removed union literature
from the lunchroom. (Tr. 54–56, 58–61, 65, 87–89, 95, 100–
102, 109–116; R. Exhs. 1, 2.)
I note that Harris, who testified that the union papers
would be stacked up in a ‘‘certain area on the table’’ and
that newspapers were scattered over the tables, conceded that
‘‘Usually a supervisor or manager would pick up newspapers
and such, but they usually didn’t touch the union papers.’’
Concerning his inconsistent testimony, Shields testified that
he had a ‘‘problem remembering at times.’’ (Tr. 61, 117.)
I find that the allegations that the Company disparately re-
moved the union literature must be dismissed.
I overrule the Union’s Objection 6 (G.C. Exh. 1(p), p. 7),
which alleges that the Company discriminatorily removed the
union literature.
3. Election day conduct
a. Managers observing voters
The Union’s Objection 4 (G.C. Exh. 1(p), p. 7) alleges
that the Company, during
the election polling period, took up positions where em-
ployees going to the polls had to pass by and through
massed throngs of supervisors and other high manage-
ment officials. The employees going into and out of the
polling area were under the scrutiny of these assembled
management officials from their chosen observation
area.
In Performance Measurements Co., 148 NLRB 1657, 1659
(1964), the petitioning union alleged in an objection that the
employer’s president ‘‘stood by the door to the election area
so that it was necessary for each employee who voted to pass
within 2 feet of him to gain access to the polls.’’ The Board
found that ‘‘at various times [employer’s] president was in
a position near the door employees were to use to enter the
polling place, and that for a period of time he was seated at
a table approximately 6 feet from such doorway.’’
The Board held that ‘‘the continued presence of the [em-
ployer’s] president at a location where the employees were
required to pass in order to enter the polling place was im-
proper conduct’’ and that ‘‘by this conduct the [employer]
interfered with employees’ freedom of choice in the elec-
tion.’’
Here, during the first and second polling sessions at the
Oscoda facility where a majority of the unit employees work,
as employee Pardonnet credibly testified, some supervisors
and the following managers were ‘‘standing in a circle’’
where employees were ‘‘forced to go by’’ as they went to
vote and where the managers could watch them ‘‘as they
were standing in line to vote’’ (Tr. 228–230, 321; R. Exh.
8, p. 7):
James Grobbel, Director, Employee/Industrial Relations,
Fluid Handling Systems, from the corporate head-
quarters in Auburn Hills, Michigan.James Estes, Per-
sonnel Manager for the Oscoda, Tawas City, and East
Tawas plants.
Robert Sharp, Plant Manager at the Oscoda facility.
Richard Karbowski, General Supervisor of Oscoda As-
sembly.
Grobbel, Estes, and Sharp did not testify. Karbowski ad-
mitted that Grobbel was present in the Oscoda facility on
March 30 (Tr. 626).
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624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The polling place was in the conference room on the sec-
ond-floor mezzanine on the west side of plant 6. The main
north-south aisle in the center of the facility connects plant
6 through overhead doors with plant 5 to the north and with
plant 7 and plant 4 to the south. The voters from all four
plants reached the conference room by going from the main
aisle, along the east-west aisle leading to the lunchroom, and
left to the stairs. They lined up on the stairs and on the bal-
cony while waiting to enter the door to the conference room.
(Tr. 229–230, 382–386, 439–440, 555; C.P. Exh. 6.)
Thus the employees at the first and second voting sessions
on the morning of March 30 were required to go by the man-
agers standing in a circle near the intersection of the main
and lunchroom aisles. While the employees were waiting at
the top of the stairs and on the balcony outside the door to
the conference room, they were in clear view of the man-
agers. (Tr. 229–230, 321, 469, 545.)
Pardonnet gave the following account to the Company’s
counsel when they took her statement on May 10 in prepara-
tion for trial (G.C. Exh. 3, pp. 8–9; R. Exh. 9, p. 3):
On election day there were five to 6 managers and su-
pervisors and other salaried employees who formed a
circle in the main aisle near the center of the build-
ing. . . . election started at 5:30 a.m. During the morn-
ing of the election I was keeping an eye on the persons
in the circle. For about 3 hours, I went to vote, to the
restroom 3 or 4 times, and took my breaks and those
persons were still standing in the circle. However, the
persons standing in the circle would change from time
to time. . . . The circle was formed in the main
aisleway in the center of the plant. The circle pre-
viously described was [not] near the polling place.
However, employees on the second floor balcony wait-
ing to vote could see the entire plant and the circle of
salaried employees. . . . I know the employees stand-
ing on the second floor balcony were intimidated by the
presence of the salaried employees in the center of the
building.
First-shift employee Scott Mead was working in plant 6 in
open view of the intersection of the main and lunchroom
aisles, where ‘‘Anybody that had to vote had to walk by.’’
There is no supervisor’s desk anywhere in that area. The
plant 6 supervisor’s desk is about 50 or 60 feet south of the
intersection, near the main aisle and the overhead door lead-
ing to plant 7. (Tr. 438–441, 461–462; C.P. Exh. 6; R. Exh.
19.)
When Mead went to vote that morning, as he credibly tes-
tified, he saw Plant Manager Sharp and General Supervisor
Karbowski standing ‘‘near the intersection’’ and, ‘‘In fact, I
almost crushed right into Bob Sharp.’’ Mead did not ‘‘re-
member who all was congregating’’ there, ‘‘other than the
two.’’ Later, when waiting on the stairs about 40 feet from
Sharp and Karbowski, ‘‘I had eye contact with Bob Sharp.’’
(Tr. 441–442, 465.)
By their demeanor on the stand, both Mead and Pardonnet
impressed me most favorably as truthful, forthright wit-
nesses, doing their best to given accurate accounts of what
happened.
Pardonnet voted in the first session for third (night) shift
employees. She was the union observer at the second voting
session that morning for first-shift employees (day). Three
different employees then told her when they came up to vote,
‘‘Brandy, management is standing down there in a circle
again.’’ On cross-examination she further testified: ‘‘You
can’t imagine how intimidating a bunch of managers are in
the middle of the floor when you’re going up for a secret
ballot for your company.’’ (Tr. 326, 328, 331.)
That afternoon, as second-shift employee Wayne Yoesting
credibly testified, it seemed that ‘‘we were overrun with su-
pervisors.’’ Some first-shift supervisors who ‘‘usually leave’’
after their shift had remained, and employees commented to
him that ‘‘there must be a convention going on.’’ (Tr. 394,
403.)
Working in plant 7 that afternoon, Yoesting saw that when
first plant 4 and then plant 7 employees went to vote, super-
visors were standing in the main aisle ‘‘around in this whole
area between’’ plants 6 and 7. He did not see where the su-
pervisors were standing when plant 5 and 6 employees were
going to vote. (Tr. 385–389, 392–394.)
b. Misleading defense
In its defense at the trial, the Company presented evidence
that I find was deliberately misleading.
Before General Supervisor Karbowski took the stand as a
defense witness, the Company had plant photographs taken.
With Karbowski standing on the balcony, the photographer
took the photographs from angles that concealed the intersec-
tion of the main and luncheon aisles where the managers
were standing in the path of the employees going to vote
during the two morning voting sessions. (Tr. 548, 559.)
Two of the photographs (R. Exhs. 18, 20) were taken from
a position near the supervisor’s desk on the south side of
plant 6. Both photographs show what Karbowski called ‘‘our
east-west aisle’’ that ‘‘goes to our west dock door.’’ It is not
the aisle to the lunchroom where the employees walked past
the managers to the polling place. This ‘‘aisle,’’ which is
about 50 or 60 feet to the south of the lunchroom aisle, leads
from the main aisle and the supervisor’s desk alongside a
stack of cardboard to the west dock door. A third photograph
(R. Exh. 19), also taken from a position south of the lunch-
room aisle, shows the main aisle, the supervisor’s desk near
the overhead door to plant 7, and the stairs, but no part of
the lunchroom aisle. (Tr. 543–545, 549, 556–559.)
There was no testimony or contention that Karbowski and
the managers on the morning of March 30 were standing
near the supervisor’s desk. Instead, they were standing at the
center of plant 6 about 50 or 60 feet to the north, near the
intersection of the main and lunchroom aisles.
When called as a defense witness, Karbowski testified that
at the time of the election, the stack of cardboard was 12 to
14 feet high, obstructing the view from the supervisor’s desk
to the stairs—but not claiming that the cardboard obstructed
the view from the intersection of the main and lunchroom
aisles to the stairs. Then, answering the company counsel’s
questions, Karbowski denied standing at any time during the
March 30 election in this area near the supervisor’s desk
with Plant Manager Sharp for ‘‘30 minutes or more,’’ for
‘‘15 or 20 minutes or more at one time,’’ or for ‘‘an hour,
hour and a half.’’ (Tr. 546–549, 553–554, 559.)
Karbowski gave the following further denial (Tr. 563):
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Q. BY MR. MACK: Now . . . you’ve testified regard-
ing where the supervisor’s desk was, at any time during
the day on March 30, did you observe three, four, five,
or six supervisors standing around in that area not per-
forming any work. [Emphasis added.]
A. No. sir.
Karbowski later testified that what he had called ‘‘our
east-west aisle’’ was not an aisle, but was for hi-lo (forklift)
traffic hauling cardboard in and stacking it (Tr. 561–562).
On cross-examination he admitted that it was not used by the
employees as a pathway to go vote and that the lunchroom
aisle used by the employees was ‘‘about 60 feet’’ from the
supervisor’s desk (Tr. 601–604).
Yet the Company argues in its brief (at 13, 53):
Supervisors could not have seen who was standing
on the stairs waiting to vote as the stairs were ob-
structed by a pile of cardboard stacked in front of the
stairs.
. . . .
. . . Mr. Karbowski credibly testified that super-
visors could not see the employees standing on the
stairs in line to vote because the view of the stairs lead-
ing to the voting area was obstructed by cardboard
stacked in front of the stairs.
I find that the misleading evidence in support of this argu-
ment amounts to a deliberate attempt at deception. I discredit
Karbowski’s other denials and reject this defense.
The Union contends in its brief (at 21):
It was impossible for the employees not to feel like
they were ‘‘under the glass’’ while being observed by
the people who have the power to make decisions that
will affect their livelihood and that of their families.
This atmosphere destroyed the laboratory conditions
that are required by the Act to be free from inter-
ference.
Based on the Board’s decision in Performance Measure-
ments, above, 148 NLRB at 1659, I find that the ‘‘continued
presence’’ of Director Grobbel from the corporate head-
quarters, Personnel Manager Estes, Plant Manager Sharp, and
General Supervisor Karbowski ‘‘at a location where the em-
ployees were required to pass in order to enter the polling
area,’’ as well as from where they observed the employees
while waiting at the top of the stairs and on the balcony out-
side the door to the polling place, did interfere ‘‘with the
employees’ freedom of choice in the election.’’
I therefore sustain the Union’s Objection 4.
4. Postelection threat to union observer
On March 31, the morning after the election, union ob-
server Pardonnet approached General Supervisor Karbowski
to congratulate him for the Company’s victory in the election
and said ‘‘We tried our best.’’ As Pardonnet recalled at the
trial, ‘‘He shook his finger right in my face’’ and said,
‘‘Lady, this is only the eleventh round,’’ that ‘‘this company
goes 15,’’ and added: ‘‘Where are your God damn UAW
protection now?’’ (Tr. 198–199.) I note that on March 31
Pardonnet recorded in the production notebook she kept at
work (R. Exh. 10 p. 47; Tr. 304), ‘‘This is round 11 & the
Company goes 15 rounds. Dick [Karbowski] (very mad).’’
As Pardonnet recalled in her May 10 written statement to
the Company’s counsel, Karbowski ‘‘said it is only the 11th
round and this got [sic] damn Company goes 15. . . . see
where your UAW friends are now. . . . He had a very angry
mean look in his eyes.’’ (G.C. Exh. 13, p. 1; R. Exh. 9, p.
1.)
According to Karbowski he told Pardonnet, ‘‘We knocked
you out in the tenth round, we still got five more rounds to
go yet,’’ and she walked away. I discredit this version of
what he said and his claim that he used the expression ‘‘five
more rounds’’ as a figure of speech, referring to the ‘‘em-
ployees that voted for the Union’’ and ‘‘I figure we got a
lot of work to do . . . to make them happy.’’ (Tr. 571–575,
585; R. Exh. 32.)
I find that whether Karbowski referred to where
Pardonnet’s ‘‘UAW protection’’ or her ‘‘UAW friends’’
were then, after the Union’s loss of the election, his state-
ment about the 11th round and the Company going 15
rounds in that context clearly referred to her active role in
supporting the union campaign.
I agree with the contention in the General Counsel’s brief
(at 9) and find that Karbowski’s statement ‘‘on the day after
the election is an overt threat of retaliation for her union ac-
tivities and thus, constitutes a violation of Section 8(a)(1) of
the Act.’’ I also agree with the General Counsel’s contention
that this unlawful conduct is ‘‘highly relevant’’ to
Pardonnet’s later suspension.
5. Suspension of union observer
a. Discriminatory circumstances
Since her employment in January 1988, Venita ‘‘Brandy’’
Pardonnet had never been accused of falsifying the amount
of her production (Tr. 194–195, 332–341; R. Exhs. 13–15;
G.C. Exh. 12, p. 32). On January 25, 1995 (before she be-
came a union observer and less than 5 months before her
suspension), Supervisor Denise Wilson wrote on her em-
ployee progress review (Tr. 749–750; G.C. Exh. 11):
Brandy is a good, hard worker who is very willing to
do new jobs & help work the ’bugs’’ out of them. Keep
up the good work.
On June 20 Pardonnet was working with employee Doro-
thy Gapuz, assembling and testing airline parts. (Gapuz, who
was not disciplined, did not testify.) Pardonnet testified, ‘‘I
know’’ that when she left early that day with Wilson’s ap-
proval, she and Gapuz had reached the production quota of
800 parts. Pardonnet was certain because she remembered
that they had four full boxes, each containing 150 parts (for
a total of 600), and two partial boxes. ‘‘When we looked at
our tags, we added up our tags, it came to 800.’’ It is undis-
puted that Pardonnet reported 400 parts on her timecard and
Gapuz signed a tag for 400 parts. (Tr. 211–216, 225, 228,
348–350, 762.)
That evening Pardonnet received a call at home from em-
ployee inspector Patricia Staubaum, who reported a missing
box of parts. As Pardonnet credibly testified, this ‘‘floored
me. I had no idea I had come up short a box of parts.’’
Pardonnet’s only explanation of what could have happened
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626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was that there were two different jobs, the boxes were placed
against two different walls, and after ‘‘Pat [Staubaum] came
by and put her bar codes on them, started straightening the
boxes up, we were short a full box after the bar codes were
put on them.’’ Before that, ‘‘We looked over there, the boxes
were there, because I counted them and [Gapuz] counted
them. The boxes were there.’’ (Tr. 216–219, 224–225, 353–
354, 359–361.)
The next morning, June 21, Pardonnet found Supervisor
Wilson and ‘‘told her that I had a phone call and was told
I had made a mistake in my counting.’’ Wilson ‘‘said I
would have to talk to Dick Karbowski about it.’’ When she
found Karbowski on the floor, he said ‘‘it was out of his
hands, that [Plant Manager] Bob Sharp was handling it, and
he would get ahold of me.’’ (Tr. 219, 361.)
This was not the ‘‘standard procedure for investigating an
employee incident.’’ Karbowski admitted on cross-examina-
tion that in a ‘‘suspension type of incident,’’ the supervisor
would ‘‘notify me about an infraction.’’ After going through
the employee handbook to determine the severity of the
charge, ‘‘I would recommend to the supervisor, one way or
the other, suspension, or we’ll work it out. . . . If it’s a sus-
pension, the supervisor will go down to the employee and
explain the reason for suspension, until . . . we investigate
further.’’ (Tr. 580–581.)
Here on June 20, as Karbowski (but not Wilson) admitted,
Wilson instead went directly to Sharp (who did not testify).
The next morning when Karbowski returned to the plant,
Wilson ‘‘addressed it with me, and we sat down with Mr.
Sharp and went over this, to make sure that all bases were
covered, that there wasn’t something wrong.’’ (Tr. 576.)
Before noon, June 21, as Pardonnet credibly testified,
Sharp told her in his office with Wilson present that she had
come up a box of parts short, that she had falsified her time-
card, and that she was suspended indefinitely. Sharp said
‘‘They would get ahold of me after the investigation,’’ and
she left. Sharp did not ask her to explain her side of the mat-
ter. Neither did he ask how she could have made the mis-
take, or offer to let her review the records. (Tr. 220–221,
362, 369–370.)
Although Sharp promised an investigation, Wilson admit-
ted that she made no further investigation after June 20. She
claimed that yes, she thought ‘‘it’s fair that Brandy
Pardonnet was never allowed to tell her side of the story.’’
(Tr. 750, 753.) To the contrary, Karbowski admitted that
talking to the employee was an important element in deter-
mining what action to take, especially ‘‘where you were in-
vestigating an incident that may have been intentional’’ (Tr.
582).
When asked on cross-examination if he contended in open
court that Pardonnet had intentionally misreported the
amount of parts on her timecard, Karbowski answered (Tr.
579):
A. Intentionally?
Q. Yes.
A. I don’t know if I could say yes or no either way,
but she did show it, and leave the plant early.
Yet Karbowski admitted that he was making the conten-
tion that Pardonnet ‘‘did it intentionally’’ and testified that
he went to Personnel Manager Estes and Human Resources
Director Treglown ‘‘to make sure they seen our facts,’’ then
‘‘I sat down with Mr. Sharp, and we discussed what we
thought should be done about this. . . . We decided . . .
this is a very serious violation, but we decided that it would
be a suspension, instead of termination.’’ (Tr. 577–578, 580.)
After giving this testimony, Karbowski took credit for the
decision to suspend Pardonnet. He testified that yes, he knew
that Pardonnet had been active on behalf of the Union, but
testified no, her union support played no part in his decision
to suspend her. (Tr. 578.)
On June 27 Sharp, with Karbowski and Wilson present,
met with Pardonnet in his office. He said he had investigated
the incident and in his opinion it was ‘‘intentional,’’ but he
was giving her the benefit of the doubt and that she could
come to work the next day. Sharp, like Karbowski and Wil-
son, never asked for Pardonnet’s version of what happened.
(Tr. 221–222.) At the time, Pardonnet wrote in her produc-
tion notebook: ‘‘Suspended. Meeting with Bob Sharp, Dick
[Karbowski]. Bob said I did it intentionally (on purpose).
Was investigated?? Gave me benefit [of doubt]. . . . What
a joke!’’ (R. Exh. 10, p. 92.)
On June 28 Wilson gave Pardonnet a notice of disciplinary
action. The Notice shows no previous violation within 12
months. It has a check mark before ‘‘1ST VIOLATION’’
and ‘‘FIRST WRITTEN WARNING.’’ It states that she was
suspended 6–21–95 for ‘‘Reporting false quantity of Produc-
tion’’ and ‘‘may return to work 6–28–95.’’ An attachment
states that she will be given a 60-day probation period begin-
ning 6–28–95 and that any violation of a serious nature in
the 60 days ‘‘WILL RESULT IN YOUR TERMINATION.’’
She signed ‘‘Under protest.’’ (Tr. 363–365; G.C. Exhs. 14–
15 and 12, p. 32.)
Wilson proved to be an untrustworthy witness. In support
of the Company’s decision to suspend Pardonnet, Wilson
claimed on cross-examination that whether or not an employ-
ee’s misreporting of production was ‘‘intentional’’ was not
relevant, ‘‘not the way I understand it’’ (Tr. 744). She fur-
ther claimed that no, it would not be important in deciding
what action to take to know whether the person made an
honest mistake or was intending to slip out early and get
paid for it’’ (Tr. 760).
By her demeanor on the stand, Wilson impressed me as
being a witness who was willing to give any testimony that
might help the Company’s cause. I cannot rely on her ac-
count of the investigation.
I note that on June 20 when Wilson made a written report
of the incident, she did not recommend that Pardonnet be ei-
ther suspended or placed on probation. Although Wilson de-
nied at the trial (Tr. 741) that she had ‘‘considered maybe
not even writing [Pardonnet] up at all,’’ she had stated in the
report (G.C. Exh. 16): ‘‘I will get with Dick [Karbowski] &
let him know the situation to see what needs to be done (i.e.,
left early, write-up, nothing, etc.).’’ I deem the report persua-
sive evidence that when she made the investigation on June
20, she did not believe that Pardonnet had intentionally fal-
sified the amount of her production.
I also note that Wilson admitted that no, she had ‘‘never
had any trouble with’’ Pardonnet before, ‘‘not that I can re-
call’’ (Tr. 759–760).
The evidence does not support the Company’s contention
in its brief (at 77) that Pardonnet’s ‘‘disciplinary action is
consistent with the [Company’s] past practice with respect to
similar incidents.’’ The only evidence of an employee being
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627ITT AUTOMOTIVE
suspended and given a 60-day probation for a first offense
of reporting the wrong amount of production involved em-
ployee Kristine McDonald, who ‘‘admitted to [Karbowski]
and Denise Wilson that she knowingly added 200 parts to
her timecard because as she stated [she] had to get out early
that she had something to do’’ (G.C. Exh. 10; R. Exh. 36).
Employee Timothy Zech, however, was given only a first
written warning although he ‘‘reported a false quantity of
parts [after] he removed first shift tag and replaced it with
his own’’ (G.C. Exh. 3).
b. Previous discrimination
Challenging Pardonnet’s credibility, the Company intro-
duced evidence that instead reveals its previous discrimina-
tion against her.
The Company contends in its brief (at 65) that Pardonnet
‘‘confused fact with fiction’’ in her testimony. In support of
this contention, the Company alludes to (without quoting) the
following in Pardonnet’s May 10 statement that Company
Counsel Mack, in the presence of Counsel Harris, took from
her in preparation for trial (G.C. Exh. 13, p. 7; R. Exh. 9,
p. 3):
During the campaign I had a book in which I wrote
down my job and work. During the campaign I would
write down incidents relating to the union and the elec-
tion. I wrote the incident down as soon as it happened.
I write the incident down to the best of my recollection.
I still have the book at home. To date no one has made
any changes in my books.
Concerning this statement, the Company refers in its brief
(at 65) to part of what Pardonnet stated in her July 12 pre-
trial Board affidavit—but omitting the following emphasized
part (R. Exh. 8, p. 6):
Harris asked me how I remembered everything so well.
I told him that I wrote everything down in my book.
He asked me what book. I said that it is a book that
more experienced operators keep of their pay rate and
your actual hours worked and if there are any problems
on the job. . . . Curtis asked me what I wrote down in
it. I told him that I wrote down our rated hours, our
actual hours, problems on the job and since the union
effort started I wrote down any problems or notes to
myself.
The Company then cites (at 65 fn. 20) Pardonnet’s three
production notebooks that it introduced in evidence (R. Exhs.
10–12), argues that Pardonnet did not write ‘‘everything
down in her book,’’ and asserts: ‘‘More specifically, [the
Company’s] review of Ms. Pardonnet’s books disclosed that
over a three year period, Ms. Pardonnet made a handful of
references to the union campaign or to any other incident rel-
evant to the hearing.’’
Pardonnet’s notebooks contain not only notes concerning
the Union’s organizing campaign and the Company’s
antiunion campaign, but also notes to herself about ‘‘prob-
lems on the job.’’ Some of these notes and testimony that
the Company elicited at the trial reveal how the Company
discriminated against Pardonnet before it signed the June 3,
1994 settlement agreement in the four earlier cases.
As discussed above, the settlement agreement does not in-
clude a nonadmission clause, but instead provides in a res-
ervation clause that the Board may rely on evidence obtained
in the investigation of the case in making findings of fact or
conclusions of law. The notice that the Company posted
states in part that the Company WILL NOT (f) maintain or
enforce any rules that prohibit ‘‘posting union literature on
employee bulletin boards’’ or (g) ‘‘restrict our employees’
conversations, restrict their mobility or monitor their activi-
ties more closely because of their support for the UAW.’’
Pardonnet’s 1993 production notebook (R. Exh. 11) shows
that the union campaigning began in September of that year.
September 23 (p. 87), Pardonnet noted, ‘‘Union but-
ton 1st day.’’
September 30 (p. 90), ‘‘Per Dick [Karbowski].
Carrol said designated work area no talking.’’
October 6 (p. 93), ‘‘1:00 meeting time.’’
October 7 (p. 93), ‘‘Told couldn’t be on floor until
6:20. Jim Mills per Dick.’’ October 8 (p. 94), ‘‘Can’t
come on floor until 6:20 a.m. per Dick.’’
October 11 (p. 95), ‘‘Carrol told Phil couldn’t talk
to me’’ and ‘‘Phil told Bill not to talk to me.’’
October 13 (p. 96), ‘‘Conversation with Richard
[Karbowski]. [Floor Supervisor Sandra] Sandy [Lawlor]
wouldn’t leave’’ and ‘‘ITT lawyers meeting super-
visors.’’
October 14 (p. 97) ‘‘Wore T-shirt UAW’’ and ‘‘By
[Floor Supervisor Louis] Lou [Campbell]. Left work
area without permission per Dick.’’
October 19 (p. 98), ‘‘Grobbel meeting 1:00.’’
December 13 (p. 117), ‘‘Took leaflet of support to
Bob Sharp. Jim Estes brought back. Said no way. Come
to office by appointment.’’ [Emphasis added.]
Pardonnet’s 1994 production notebook (R. Exh. 12) is a
weekly planner calendar, each two pages covering 7 days. It
shows her notes concerning union and antiunion activity in
the first part of the year before the election was postponed
because of the earlier charges.
January 11 (p. 4), ‘‘Went to see NLRB in Tawas.’’
January 14 (p. 4), ‘‘Got UAW posted.’’
January 17 (p. 5), ‘‘Asked Bob [Sharp] to sign UAW
flyer. Took. Never gave back. Ralph Iorio was here.’’
January 21 (p. 5), ‘‘Meeting 1:45.’’
January 28 (p. 6), ‘‘Gave Denise [Wilson] flyer.
Wouldn’t post.’’
February 6 (p. 7), ‘‘Petition sent in. Can’t walk
around. Questioned what I’m doing.’’
February 7 (p. 8), ‘‘Bob Sharp won’t sign Flyer.’’
February 11 (p. 8), ‘‘Meeting.’’
February 21 (p. 10), ‘‘Meeting.’’ [Emphasis added.]
Pardonnet gave the following explanation on cross-exam-
ination (Tr. 301–302):
Q. Do you recall making any specific recordings in
your books about a misdeed by the company against
you because of your involvement with the union?
. . . .
BY MR. MACK: What were they and can you point
them out to us? I didn’t find any in there, ma’am.
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628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. Not being able to go to the bathroom without
being asked, not being able to go over a yellow line,
having to ask the supervisor when I could go, when I
could leave, not being able to go into a different plant,
not being able to talk to more than two people at one
time.
The Company’s actions against Pardonnet before the set-
tlement agreement are not alleged in this proceeding to be
unlawful.
Pardonnet’s 1995 production notebook (R. Exh. 10) shows
notes before and after the March 30 election, until her sus-
pension and probation, and when she quit.
February 6 (p. 20), ‘‘Meeting Jim Estes, Dick
[Karbowski], George [Treglown].’’
February 8 (p. 21), ‘‘Meeting.’’
February 23 (p. 29), ‘‘Dick confronted me with
Danny V. and Ed Klenow about hiring people because
Union froze it.’’
March 23 (p. 43), ‘‘George [Treglown] meeting.’’
March 31 (p. 47), ‘‘This is round 11 and Company
goes 15 rounds. Dick [Karbowski] (very mad).’’
May 10 (p. 68), ‘‘ITT lawyers [taking statement].’’
June 20 (p. 88), ‘‘800 parts’’ and ‘‘Wrong count on
day Pat called.’’
June 21 (p. 89), ‘‘Suspended at 12:00 noon.’’
June 27 (p. 92), ‘‘Suspended. Meeting with Bob
Sharp, Dick [Karbowski]. Bob said I did it intentionally
(on purpose). Was investigated?? Gave me benefit [of
doubt]. . . . a joke!’’
June 28 (p. 92), ‘‘Had to sign write-up and probation
papers in office under protest!’’
October 9 (p. 130), ‘‘Quit’’ (Now employed at
McDonalds, Tr. 194).
I find that Pardonnet’s production notebooks do not detract
from her credibility. I reject this and the Company’s other
challenges to her credibility.
In determining the Company’s motivation for giving
Pardonnet a 5-day suspension and placing her on probation
for 60 days for a first offense, I have taken into consider-
ation the apparent discriminatory actions taken against her
before the settlement agreement. I have also considered (1)
her service on the organizing committee; (2) her writing sev-
eral articles to the Oscoda and Tawas newspapers; (3) her so-
licitation of union authorization cards; (4) her service as a
union observer at the election (Tr. 196), as well as (5) Wil-
son’s admission that ‘‘Brandy was a big union supporter’’
(Tr. 755); and (6) Karbowski’s March 31 threat of retaliation
for her union activities.
c. Concluding findings
Particularly in view of the discriminatory circumstances
discussed above and the rulings on credibility, I find that the
Company seized on the reported missing box of airline parts
as a pretext for retaliating against Pardonnet for her active
support of the Union.
I therefore find that the General Counsel has carried his
burden of proving that Pardonnet’s protected union activity
was a substantial and motivating factor in the Company’s de-
cision to suspend and place her on probation. Wright Line,
251 NLRB 1083 (1980). I further find that the Company has
failed to meet its burden to prove that it would have sus-
pended and placed her on probation in the absence of her
union activity.
Accordingly I find that the Company discriminatorily sus-
pended Venita Pardonnet for 5 days beginning June 21,
1995, and placed her on 60-day probation on June 28, 1995,
in violation of Section 8(a)(3) and (1) of the Act.
III. REPRESENTATION PROCEEDING
The petition in Case 7–RC–20273 was filed on February
11, 1994, and a Stipulated Election Agreement was approved
on March 2, 1995. The Tally of Ballots in the March 30,
1995 election shows that there were 321 votes for and 503
against the Union, with 5 challenged ballots. The Union filed
timely objections on April 6, 1995. (G.C. Exh. 1(p), p. 6.)
As found, the Company interfered with the employees’
free choice of representation as alleged in the Union’s Objec-
tions 1, 2, 4, and 5. Also as found, (a) Division President
Iorio’s March 28 speech, unlawfully predicting job losses
from strikes, job transfers, or plant closure without objective
foundation, (b) Human Resources Manager Treglown’s state-
ment about the futility of selecting the Union, and (c) the
Company’s interrogation of employees regarding the wearing
of antiunion buttons were coercive and violated Section
8(a)(1) of the Act.
I therefore find that this conduct, which occurred during
the critical preelection period, clearly interfered with the em-
ployees’ free choice of representation and that the election
must be set aside and a new election held.
CONCLUSIONS OF LAW
1. By predicting the lost of jobs from strikes, job transfers,
or plant closure without objective foundation, the Company
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act.
2. By creating the impression of bargaining futility, the
Company violated Section 8(a)(1).
3. By coercively interrogating employees about their will-
ingness to wear antiunion buttons to indicate that they would
vote against the Union, the Company further violated Section
8(a)(1).
4. The General Counsel failed to prove by credible evi-
dence that the Company disparately removed union literature
from the lunchroom tables.
5. Because the Company’s conduct during the critical
preelection period clearly interfered with the employees’ free
choice of representation, the March 30, 1995 election must
be set aside and a new election held.
6. The Company on March 31, 1995, threatened retaliation
against one of the union observers at the March 30 election
for her union activities, violating Section 8(a)(1).
7. The Company discriminatorily gave the union observer,
Venita Pardonnet, a 5-day suspension beginning June 21,
1995, and placed her on 60-day probation, violating Section
8(a)(3) and (1).
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
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629ITT AUTOMOTIVE
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily suspended an em-
ployee for 5 days, it must make her whole for any loss of
earnings and other benefits, plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, ITT Automotive, a division of ITT Cor-
poration, Oscoda, Michigan, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Predicting the lost of jobs from strikes, job transfers,
or plant closure without objective foundation if the employ-
ees vote for representation by the United Auto Workers
(UAW).
(b) Creating the impression of bargaining futility if the
employees vote for UAW.
(c) Coercively interrogating employees about their willing-
ness to wear antiunion buttons to indicate that they would
vote against the Union.
(d) Threatening to retaliate against any employee for en-
gaging in union activities.
(e) Suspending or placing any employee on probation for
engaging in union activities.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Venita Pardonnet whole for any loss of earnings
and other benefits suffered as a result of her discriminatory
suspension in the manner set forth in the remedy section of
the decision.
(b) Within 14 days from the date of this Order, remove
from its files any reference to her unlawful suspension and
probation, and within 3 days thereafter notify Venita
Pardonnet in writing that this has been done and that the sus-
pension and probation will not be used against her in any
way, including any request for reemployment.
(c) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Within 14 days after service by the Region, post at its
facilities in Oscoda, Tawas City, and East Tawas, Michigan,
copies of the attached notice marked ‘‘Appendix.’’3 Copies
of the notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed any of the facili-
ties involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by
the Respondent at any time since April 19, 1995.
(e) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
IT IS FURTHER ORDERED that the election is set aside and
Case 7–RC–20273 is severed from Cases 7–CA–37082(2),
7–CA–37367, and 7–CA–37367(2) and remanded to the Re-
gional Director to conduct a second election when he deems
the circumstances permit a free election.
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